고령자의 판단능력 쇠퇴를 대비한 미래설계와 새로운 성년후견제도

Abstract

Traditional adult guardianship, even in western countries such as Germany andEngland, had targeted at either preventing persons with mental disabilitiesengaging in legal transactions for their protection or protecting the property ofpersons with spendthrift habits, regardless of any reasons, for their familymembers before reformation of guardianship system began from 1990s. Thesituation in Korea was not different; namely, family members of persons withdementia and brain injury have applied for the opening of guardianship to protecttheir relatives’ property for applicants’ own interest. However the use ofguardianship has been strikingly rare in comparison of other countries, where moreor less 100 persons per 100,000 inhabitants are under guardianship, because lessthan 10 per 100,000 inhabitants have been estimated to be under guardianship inKorea. It seems because most persons with severe mental or intellectual disabilitieshave been accommodated in closed facilities remote from local communities, whichmeans that there is little needs to prevent them engaging in legal transactions. Such situations can result in few persons having resorted to the application ofguardianship, even though adult guardianship was reformed as of 1st July 2013. Traditional guardianship does not fit the needs of elderly and persons withdementia, because they used to have no problems at decision making before thetriggering events of dementia and used to express their antipathy to guardianshipbecause of its targeted purposes. As aging societies in western countries progress,future planning schemes for the time of deterioration of capacity have beenpopular among elderly and persons with dementia and their families, which resulted in the use of enduring power of attorney, lasting power of attorney andadvanced directives to medical treatments. This paper suggests that contractualguardianship and alternatives to guardianship have to be provided for elderly andpersons with dementia as future planning schemes, and proposes concrete schemesrelevant to them.