임의후견제도의 쟁점과 활용

Abstract

The voluntary guardianship system can play a crucial role in supporting the health and asset management of individuals in an aging society. However, its use remains limited due to a lack of social awareness. In particular, the system has high utility in areas such as asset management and inheritance planning. Activating the system can help reduce property disputes and ensure the stable well-being of wards. To achieve this, both institutional improvements and increased social attention are necessary. An analysis of foreign guardianship systems provides insights for improving Korea’s system. In Japan, emphasis is placed on entering into contracts in anticipation of the decline of the principal’s decision-making capacity. In the United States, insufficient support for personal decision-making remains a challenge. In Germany, the legal protection of adults is continuously enhanced through ongoing amendments and revisions to the adult guardianship law. In an aging society, cognitive impairments among the elderly are inevitable, making it necessary to encourage the conclusion of guardianship agreements in anticipation of potential loss of decision-making capacity. Guardianship agreements can be proposed as the best method to safeguard an individual’s future by reflecting their personal will and values. However, current Korean Civil Code provisions regarding guardianship agreements are limited, and the application of statutory guardianship provisions is not always appropriate, highlighting the need to revise the regulations on voluntary guardianship. Moreover, the cognitive and physical conditions of older adults are highly diverse, necessitating tailored legal protection according to individual needs. Existing guardianship agreements often follow a rigid framework that may not sufficiently accommodate diverse requirements. Therefore, it is essential to enhance the flexibility of guardianship agreements so that contracts can be customized to individual circumstances. As a potential solution, the introduction of modular guardianship agreements is proposed. Various areas—such as asset management, asset distribution, medical decision-making, and daily life support—can be organized into separate modules, allowing for selection and modification. Regular review and amendment procedures can ensure the adaptability of agreements. This approach respects the autonomy of the ward while providing necessary legal protection. Furthermore, building social trust in guardianship agreements and activating the system can strengthen the legal protection framework for the elderly in an aging society.