신상결정 대행에 있어 싱가포르 정신능력법의 시사점

Abstract

It is consequently necessary to protect the adults who have difficulties in making their own decision because of a lack of mental capacity, which should however be attained without infringing their autonomy and freedoms. The new adult guardianship system in Korea intended to respect dignity and human rights of mentally incapacitated adults, to guarantee their autonomy and to minimize the public interventions for assisting them. So the reformed protection system introduced a continuing power of attorney. Furthermore, according to section 947-2, people who lack mental capacity can make decisions by himself on their personal welfares. However, Korean Civil Code for instance does not provide for any guidance as to how the capacity of adult to make such decisions can be assessed. So there are two questions:　how can a guardian respect a mentally incapacitated adult and also protect him if his capacity cannot be properly assessed? And how can he identify the personal welfares separately?So this article explains the main features and contents of the Mental Capacity Act 2010 of Singapore. Under the Act, adults must be assumed to have capacity unless it is established that they lack capacity. And Mental capacity is assessed on a case-by-case basis and cannot be assumed based only on the person suffering a particular medical condition. Furthermore, a person’s lack of mental capacity cannot be based only on age, how a person looks, his condition or any aspect of behaviour. A person lacks a capacity to make his own decision if he is unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or to communicate his decision through any means. And a Lasting Power of Attorney(LPA) in Mental Capacity Act Singapore, allows a person(known as donor) to voluntarily appoint one or more persons(known as donee). And there are two kinds of decisions donee can make, one on personal welfare matters of mentally incapacitated adult, and another on his property & affairs matters. Mental Capacity Act places strict restrictions when donees make decisionｓ on personal welfare matters, for example, consenting or refuse life-sustaining treatment, receiving treatment for change of gender, consenting or revoking consent to treatment for sexual sterilization, consenting or revoking consent to abortion, registering or withdrawing an objection regarding the removal of an organ from any person upon death, making or revoking an advance medical directive. And these restrictions refer also to deputies. In thess respects, the Mental Capacity Act 2010 of Singapore can be a good example which the new adult guardianship system in Korea can refer to.