개정민법상 임의후견제도의 쟁점과 과제

Abstract

The new adult guardianship system including a continuing power of attorney(CPA) system will be in force 1. July, 2013 in South Korea. The aim of this paper is to discuss the practical issues in the CPA system. The CPA system is a system for notarized concluding a CPA contract, while the principal still has the mental capacity to make a decision for concluding the contract, providing a mandatory with powers of representation and decision-making of personal affairs, especially the consent to medical treatments and for guardian works(works concerning management of estate and personal affairs—medical treatments and cares). It aims to prepare for a time when the capacity to make a decision of the principal has become insufficient and when it is actually insufficient. The CPA may begin with the supervision by supervisor of a continuing power of attorney, who may be appointed by the Family Court. As notarizing concluding of a CPA contract, notaries may have an interview in person to determine whether the principal has the mental capacity to make the decision about the contract and the intention to enter into the contract. It is important issues to note in this paper, what is the test to determine the mental capacity of principal for concluding CPA contract, whether can concluding of CPA contract be represented by parents or guardians, How supervising a CPA guardian to prevent from his/her fraudulent acts, whether a CPA guardian must get the permission of Family Court as consent of the fatal medical treatment. There are necessities for the legislation of the Registration of guardianship Act and the revisions in the Notary Public Act and the Family Litigation Act, etc. before the CPA system enters into force.