캐나다 브리티시 콜롬비아주의 의사결정능력장애인의 사법상의 권리 실현 보장체계에 관한 연구

초록

This article dealing with the British Colombia system for protecting private rights of persons with impairment to decision making ability aims to propose what system should be provided for to make sure such persons live integrated into communities while avoiding typical risks they face. Such a person has difficulties in getting job because of their impairment to decision making ability, leading to little financial resource. In this regard, national assistance can be main resource on which they live everyday life. Despite financial resource, he has difficulties in using it for its proper purpose. Furthermore, he is likely to incur loss by exploitation or deceit from others, due to lack of capacity to reasonably make decisions on financial matters. To make him avoid such risks, it is indispensible to assist or substitute decision-making to use financial resource to his benefit. Such a supported decision making system or suubstitute decision making system can not properly work unless any protection and advocacy system intervenes whenever and wherever any kinds of abuse or neglect happen to persons with impairment to decision making ability. Lastly, such a Protection and advocacy system cannot function properly unless access of such persons to civil litigations are guaranteed even though any proper guardian is not available or even though abuser or any tort feasor is his guardian or relative. This article analyses British Colombian system with this analysis frame. The main features of B.C protection system are as follows. Firstly, private resource as well as public money is well mobilized by combination of national assistance and special needs trust even though there is not any kind of maintenance duty of parents for their adult child. Secondly, B.C. tries to minimize installation of guardianship by widening availability of alternatives to guardianship, leading to reduction of social costs to provide persons with imparied decision making ability with supported or substituted decision making system. Furthermore, social environment for integration of such persons into communities is enhanced by diverse kinds of schemes for assisting decision making. Thirdly, public guardian and trustee office has been working for vulnerable adults by supervising committees, attorneys, and representatives. In addition, CLBC, a private entity, assists the Public Guardian and Trustee Office as a P&A organization, the powers and duties of which have been delegated by B.C. government to protect and advocate persons with impairment to decision making ability. The B.C. system can work properly in terms of protecting private rights of such persons because B.C. civil procedure rules fully guarantees access of such persons to civil litigation, even though there is not any guardian, attorney, or representative and even though guardian, attorney or representative is the person abusing or neglecting such a vulnerable adult.

키워드