성년후견과 지속적 대리 - 의사결정능력 장애인의 보호에서 인권존중으로 -

초록

Under the legal incapacity regime, an adult guardian, who used to be a family member, was endowed with the responsibility and power to administer properties and protect personal welfare of adults with impairments to decision-making ability as soon as the latter were declared to be in full incapacity(Gm-Chi-San) or in limited incapacity(Han-Jeong-Chi-San). The guardian had the power of representation as a part of property administration and personal custody. Under the adult guardianship system, a guardian has no longer the responsibility and power to administer properties and protect personal welfare of the person under guardianship. The guardian, except the full guardian, is allowed only to represent the person under guardianship in relation to financial affairs and personal welfare. The power of representation is restricted to the juridic acts which would be done by the person under guardianship if he/she had the legal capacity to make decisions. With the commencement of guardianship the state, namely a judge, delegates the power to make decisions on behalf of persons under guardianship to guardians, meaning that guardianship is intervenes the private sphere and violates the rights of persons under guardianship to self-determination in relation to legal acts including the appointment of agents by himself or herself. Therefore, the commencement of guardianship should be in accordance with the principles of lawful restriction of constitutional fundamental rights. It would be against the constitution if guardianship is commenced beyond the necessity and period necessary for the protection of persons under guardianship. On the other hand, any person can endow proper persons with the lasting power of attorney to do legal acts on his and her behalf for the future when he or she might lose the mental capacity to make decisions. Then, that person with the lasting power of attorney would repeatedly and continuously represent the principal in relation to property affairs and personal welfare and medecal treatments which would be necessary for the principal. That case would lack the necessity of guardianship, and if so, it would be necessary for a guardian to exercise the power of principal to supervise the legal acts done by persons with lasting power of attorney. The same thing would happen if the advanced directive to care and medical treatment is effectively drafted. This article suggests that guardianship should be a last resort and commenced in the least restrictive way in the unavoidable case for the protection of persons with impairments to decision-making ability because it is the state obligation to respect their rights to self-determination. Instead, this article suggests that the state should provide for the registration and supervision system of advanced directives and lasting powers of attorney so as to facilitate convenient use of them, which would be regarded as a reasonable accommodation for disabled persons. To support this arguments, this article analyses the historical development of guardianship and the enlargement of the scope of legal representation, and introduces the general comment of UN committee on the Rights of Persons with Disabilities to explain why the least restrictive use of guardianship and positive support to advanced directives and lasting power of attorneys are necessary.

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