미국 뉴욕 주의 성년후견 심판절차 = A Study on the Procedural Concerns of Adult Guardianship in the State of New York, the U. S. A.

다국어 초록 (Multilingual Abstract)

In the United States of America, a guardianship system has been a state issue instead of a federal one historically. Thus every state has a statute law to grant the court a right to appoint a guardian for those who need one.
In State of New York, Mental Hygiene Law has provisions about adult guardianship in Article 81. In 1993, the State of New York fundamentally reformed the guardianship system to establish a system to meet the diverse and complex needs of those who need a guardian and ensure due process. Since then, there have been several revisions(2004, 2008, 2009, 2010 and 2011). The legislation purpose of the act was to establish an adult guardianship system not only to meet the needs of the personal and property management according to individual needs, but also to offer those who need a guardian the greatest amount of independence and self-determination and opportunities to participate in all decisions affecting their lives by taking into account their own wishes.
Judgment of guardianship commencement requires careful procedures to ensure due process for an incapacitated person as it restricts his or her capacity and property management and thus causes significant effects on his or her interest. In the State of New York, there are rigorous provisions for functional approaches and procedural requirements to fulfill those legislation purposes.
In the State of New York, Mental Hygiene Law contains provisions about the notice of case continuance and the guidance of procedures in order to grant an opportunity to participate in the guardianship judgment procedure to the allegedly incapacitated person. There is no provision about the notice of case continuance in the Domestic Litigation Act and the Non-Contentious Case Litigation Procedure Act in Korea. Thus there is a need to establish provisions about the notice of case continuance like service of process in civil case procedures in order to guarantee the hearing claim of litigants practically. It is important for the principal to appear in the court on the day of hearing since he or she can leave his or her specific impressions on the judge by doing so. The State of New York allows a principal to get a hearing where he or she currently lives when he or she cannot appear in the court due to physical limitations. When there is shortage of procedural consideration, the purpose of respecting the self-determination of the principal in substantial law cannot be fulfilled. The judge’s obtaining first-hand impressions in a hearing makes the central part of authority detection. Thus it is necessary for the judge to interrogate the principal him or herself in a trial to commence or terminate adult guardianship.

목차 (Table of Contents)

• Ⅰ. 머리말
• Ⅱ. 미국 뉴욕 주 성년후견제도의 법적 기초
• Ⅲ. 뉴욕 주 성년후견 심판절차
• Ⅳ. 뉴욕 주 성년후견법의 시사
• Ⅴ. 결론
• 《참고문헌》

참고문헌 (Reference)

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2 김원태, "성년후견 등 심판절차에 관한 가사소송법 정비 방안에 대한 관견" 한국재산법학회 28 (28): 265-302, 2011

3 이덕환, "미국에 있어서 성년후견제도의 개혁" 한양법학회 11 : 2000

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7 Berger, Robert S, "The psychiatric expert as due process decisionmaker" 33 : 681-, 1984

8 Koppell, G. Oliver, "The New Guardian Statute: Article 81 of the Mental Hygiene Law" 65 : 16-, 1993

9 Posner, Neil B, "The End of Parens Patriae In New York: Guardianship Under The New Mental Hygine Law Article" 81 (81): 604-, 1996

10 Griffith, Daniel B, "The Best Interests Standard: A Comparison of the State's Parens Patriae Authority and Judicial Oversight in Best Interests Determinations for Children and Incompetent Patients" 7 : 283-, 1991

11 Horstman, Peter M, "Protective Services For The Elderly : The Limits of Parens Patriae" (40) : 218-, 1975

12 Solinski, Julie M, "Guardianship proceeding in New York : proposals for article 81 to address both the lack of funding and resource problems" (17) : 445-, 1997

13 Nora von Stange, "Gary von Stange, Guardianship Reform in New York : The Evolution of Article" 81 (81): 757-, 1993

14 Nolan, Bobbe S, "Functional Evaluation of the Elderly in Guardianship Proceedings" (12) : 210-, 1984

15 Tor, "Finding Incompetency in Guardianship; Standardizing the Process" (35) : 749-, 1993

16 Whitton, "Durable Powers as Alternative to Guardianship : Lessons we have learned" (37) : 7-, 2007

17 Shaver, "Do not resuscitate: The failure to protect the incompetent patient's right of self-determination" (75) : 218-, 1989

18 Torres, "Article 81 of the Mental Hygiene Law: designed to protect the elderly, but prejudicing children's rights" (7) : 303-, 1998