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Adult Guardianship
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01What is Adult Guardianship?
- Adult guardianship was introduced by the revised Civil Code to allow individuals with mental constraints due to illness, disability, or old age to autonomously manage their lives with dignity.
- The previous systems of full and limited guardianships, which focused primarily on property management and imposed uniform restrictions on legal capacity without considering the individual's will and residual capacity, were abolished.
- Since July 1, 2013, the adult guardianship system has been based on respecting individuals' autonomy and residual capacity, allowing for tailored support not only in financial matters but also in areas such as healthcare, rehabilitation, and other personal aspects.
02Types of Adult Guardianship
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Court-Appointed Guardianship: Adult guardianship, limited guardianship, specific guardianship
Contents Adult Guardianship Limited Guardianship Adult guardianship Voluntary Guardianship Initiation Reasons Continuous lack of ability to handle affairs due to mental limitations Lack of ability to handle affairs due to mental limitations Need for temporary support or support of specific affairs due to mental limitations Lack of ability to handle affairs due to mental limitations Claimant for Initiation Person, spouse, relative within the fourth degree of kinship, guardian of a minor, supervisor of guardianship of a minor, limited guardian, supervisor of limited guardianship, specific guardian, specific guardian supervisor, prosecutor, or head of local governmentf Person, spouse, relative within the fourth degree of kinship, guardian of a minor, supervisor of guardianship of a minor, adult guardian, supervisor of guardianship of a minor, specific guardian, supervisor of guardianship of a specific guardian, prosecutor, or head of local government Person, spouse, relative within the fourth degree of kinship, guardian of a minor, supervisor of guardianship of a minor, prosecutor, or head of local government Person, spouse, relative within the fourth degree of kinship, voluntary guardian, prosecutor, or head of local government (※ Person entitled to appoint a voluntary guardian supervisor, which is a requirement for initiating voluntary guardianship) Legal Capacity Principle of loss of capacity to act Principle of capacity to act Person with capacity to act Person with capacity to act Guardian's Authority In principle, comprehensive power of attorney, right of cancellation Power of attorney, right of consent, right of cancellation within the scope determined by the court Power of attorney within the scope determined by the court As stipulated in each contract -
Case
Overseas-residing children Elderly father facing mental constraints due to old age,
making it difficult for him to manage his property and personal matters effectively
Children
Through a court petition for the initiation of adult guardianship, etc., they can ensure suitable guardianship for their father.
Father
Additionally, one can prepare in advance by entering into a contract for trustworthy individuals to manage property and personal protection matters through a fair instrument and registering it to prepare for the occurrence of mental constraints (voluntary guardianship).
03How to bill
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Jurisdiction
Cases concerning guardianship are under the jurisdiction of the family court and branch of the family court in the address of the ward (person under guardianship). In areas where a family court is not established, the district court and branch of the district court in the area are under jurisdiction. -
Costs
General costs (recognition fee, delivery fee, etc.) and appraisal fees will be incurred for filing a claim for domestic violence litigation. The court may, upon application by a person who does not have the financial ability to pay the costs of the procedure or whose life would be significantly affected if the costs were paid, support a portion of the costs of the procedure. (Procedure Structure, Article 37-2 of the Domestic Violence Act).
04Trial Proceedings
- In order to determine whether to initiate adult guardianship or limited guardianship, the court, in principle, requires a medical evaluation of the person’s mental state.
- In the case of specific guardianship or voluntary guardianship, the court, in principle, listens to the opinion of a medical doctor or other person with specialized knowledge instead of an evaluation.
- In addition, the court, in principle, interrogates the person in question and listens to his or her statement in order to confirm the person’s condition and respect his or her wishes.
- Through these procedures, the court conducts a judgment on the initiation of guardianship, appointment of a guardian, and determination of the scope of legal representation rights so that the person can utilize his or her remaining capacity to the fullest extent.
- In addition, various judgment matters, such as changing the guardian and terminating the guardianship, are stipulated in the law.
05Custodian
- The court will respect the person's wishes first, but will appoint a suitable person as a guardian after considering various circumstances such as the person's health, living conditions, and financial status. Family members, relatives, and friends, as well as experts such as lawyers, judicial officers, tax accountants, and social workers can be appointed as guardians, and multiple people can be appointed.
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Jurisdiction
The guardian must handle guardianship affairs with the care of a good manager for the welfare of the ward and must respect the ward's wishes. The specific authority and duties of the guardian vary depending on the type of guardianship and the content of the judgment. The main duties of the guardian are as follows.
Property management
The guardian can manage the ward's property and exercise the power of representation and consent for legal acts. This is specifically determined by the court judgment depending on the type of guardianship.
Personal protection
In principle, the ward makes decisions on personal matters such as medical care, nursing, rehabilitation, education, and securing housing.
However, if the ward has difficulty making decisions on his or her own, the guardian may be granted authority by the court to make decisions regarding personal matters. -
Compensation for Guardians
The compensation for guardians is stipulated to be paid from the ward's property (Article 955 of the Civil Act). However, in cases where there is no intention to receive compensation, such as in the case of a relative guardian, there is no burden of compensation payment. -
Supervision of Guardians
If a guardian supervisor is appointed, the guardian supervisor may at any time request the guardian to report on his or her performance of duties and submit a list of assets, and may investigate the ward’s financial situation. If he or she determines that there is a problem with the guardian’s performance of duties, he or she may request the court to change the guardian.
The court may, ex officio or upon the request of the claimant, investigate the ward’s financial situation and order the guardian to take necessary measures regarding the performance of guardianship duties, such as property management.
The guardian must comply with the court’s supervision of guardianship affairs, and if he or she fails to comply or performs guardianship affairs insincerely, the court may change the guardian ex officio.
06Guardianship registration system
- The guardianship registration system is a system that publicizes matters related to adult guardianship, limited guardianship, specific guardianship, and voluntary guardianship by registration. A registration certificate is issued for each guardianship registration matter, and if there is no registration matter, a certificate of non-existence of registration matter is issued.
- When a guardian, etc. enters into a contract for the sale of property or a contract for the provision of nursing services on behalf of the ward, he or she may present a certificate of registration to prove his or her authority to act as agent to the other party to the transaction.
- Additionally, you may present a certificate of non-existence of registered matters to prove that you are not currently under adult guardianship, limited guardianship, specific guardianship, or voluntary guardianship.
- A certificate of non-existence of registered matters is a certificate indicating the non-existence of registered matters regarding currently effective adult guardianship, limited guardianship, specific guardianship, voluntary guardianship, or advance disposition.
- It can be issued to the ward, spouse, and relatives within the fourth degree of kinship, guardians, guardian supervisors, and those who have retired from each position, and other persons specified by law.
- You cannot receive it simply because you are the counterparty to the transaction.
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