성년후견제도 시행 4년의 평가와 과제

Abstract

After a new social system has been implemented, within a reasonable time we should examine whether the new system is working well in our society, identify problems, challenges we face and try to find solutions to channel the new system in the right direction. Four years ago, the new Korean adult guardianship system was implemented. It is time to examine whether the legislative purpose of the new system is well functioning. The old system was nominally designed for the protection of the ward, but did not actually respect the rights and autonomy of the ward, for the purpose of maintenance of his property. As a result, the old system was rarely used in Korea. Instead, de facto guardianship by a family member without legitimate court authority replaced the protective legal function of the persons with impaired decision-making ability. The new system has reorganized the legal guardianship into three types of protection that are very flexible and resilient. They achieve balanced protections, and respect the autonomy of the persons with impaired decision-making ability, from the perspective of respect for self-determination. In addition, the contract for guardian system(enduring power of attorney) was introduced. According the contract, the individual gives the power to someone he trusts, to act in a future the situation where he cannot make a decision about his own legal relations. For example, a legal act, an informed consent in medical treatment, and a selection of the place for his residence. Nevertheless, the use of the adult guardianship system is rare, compared to the number of persons with impaired decision-making ability who need protection and support. Moreover, the full guardianship type in the new system is similar to the old system. The use of limited guardianship or the contract for guardianship, remains rare. But the specific guardianship type is widely used by means of the public support services which has been designed by Korean government for protection and support of the persons with impaired decision-making ability in vulnerable classes. The contract for guardianship, the specific guardian type are called guardian surrogates in the sense that They replace traditional perpetual guardianship systems. The principle of necessary minimum intervention, basically, the use of the contract for guardianship and the specific guardian type should be recommended. Furthermore, it is necessary to expand the scope of public support services to others vulnerable groups with impaired decision-making ability, not only developmental disability. After the implementation of the new system, the Committee for the Rights of Persons with Disabilities urged the transition from substitute decision-making to supported decision-making in regarding the individual rights, autonomy, will and preferences of the persons with impaired decision-making ability. From this viewpoint of compliance with the Convention on the Rights of Persons with Disabilities, the development of a guardianship system centered on supported decision-making, and also the activities of guardians, are required to focus on supported decision-making.