성년후견제도의 도입논의와 영국의 정신능력법의 시사점

Abstract

Self-decision-making and communication with others are the key point of a person’s life. Therefore, the Adults who lose mental ability or have incompetent mental ability( = incapacitated adults) need special guardianship in order to live an integrative life as a member of society. The guardianship of korean Civil Code(KCC) provides safeguards by allowing guardian to administer the property and affairs of incapacitated adults. But, the guardianship of KCC focuses mainly on the protection of mental-disordered adults. Therefore Stigma accompanies the guardianship. In addition, the matters concerning personal welfare of incapacitated adults are our of protection. So a new guardianship system and a kind of lasting power of attorney system are necessary to protect wholly the incapacitated adults. This article explains the main features and contents of the Mental Capacity Act 2005 of England, which is supposed to substitute the Enduring Powers of Attorney Act(EPAA) 1985 and the Part 7 of the Mental Health Act(MHA) 1985. Compared to EPAA and MHA, this Act enlarges the protection scope of incapacitated adults to the personal welfare matters. In addition, it provides various protection means such as a deputy, a independent mental capacity advocate and a lasting power of attorney. The Aim of Mental Capacity Act which has been enforced since 2007 is to help the incapacitated adults make their own decision. When someone needs to do an act or make a substituted decision instead of an incapacitated adult, she or he should do or make it in the best interest of an incapacitated adult. According to this Act(Sec. 4 (6)), then, the hope, feelings, beliefs and values of an incapacitated adult should be taken into full consideration. It aims at helping an incapacitated adult live the same or similar life as usual even when she or he loses mental ability or has incompetent mental ability. The implication of the Mental Capacity Act 2005 of England to the reform discussion on our Adult Guardianship System is under what ideology and aim we should organize Adult Guardianship System. The most important part exists in helping the incapacitated adults make themselves their own decision. In addition, in the part of reality, Adult Guardianship System focusing on “human" and respecting self-decision - making of the incapacitated adults should be institutionalized instead of legal incompetence system focusing on just “property". Under this aim, the way, realm and content of guardianship should be judged. First, in the aspect of the realm of guardianship, many things that have drawn little attention in the discussion of present Adult Guardianship System should be discussed such as a remedy under the emergency which limits decision-making, the continuance of life in coma, the way to respect decision made even when forced to be treated as a psychic patient. Second, in the aspect of the method of guardianship, diverse forms guardianship should be provided in accordance of the needs of incapacitated adults and their family members who take care of them. More than anything else, even when family members take care of the incapacitated adults without selecting legal adult guardian, appropriate statutory protective system should be provided. In addition, legal adult guardianship system should be compatible with a kind of lasting power of attorney system and diversity of content is needed as well. Third, in the aspect of the content of guardianship, the guardianship that respects the decision of the incapacitated adults should be provided. To sum up, it should be kept in mind that the bottom-line of Adult Guardianship System which we expedite the enactment of lies not in property but in the respect of decision-making.