아일랜드의 후견제도의 개혁 입법 : 지원의사결정법을 중심으로

초록

The Irish Ward of Court system originated in the Parens Patriae prerogative of the King of England. It then found its statutory basis on the Lunacy Regulation (Ireland) Act 1871, which still is the governing law of the wards of court, more than 80 years after the foundation of the Republic of Ireland by the Constitution in 1937. When an adult is made a ward of court, the High Court takes jurisdiction over all matters relating to the person and property of the ward. A court appointed committee oversees the personal care and/or assists the Court in managing the financial affairs of the ward. This archaic system being incompatible with the UN Convention on the Rights of Persons with Disabilities, the Irish Government promised to reform the system before ratifying the convention. Ireland finally enacted the Assisted Decision-Making (Capacity) Act in 2015 and began its migration towards a decision-making support system. Although criticized for the decision-making representation order which still is a type of substitute decision-making the CRPD aims to abolish, the overall reaction to the Act is positive; the Act provides with means of supported decision-making and safeguards against misuse and abuse. The Act offers a model to the decision-making support system the CRPD intends to build: The Act allows persons with disabilities to choose for themselves their supporter(s) and the means of support; the Act stipulates that all supporters, including decision-making representatives shall ascertain the will and preferences of the relevant person and assist the person with communicating such will and preferences; The Act establishes the Decision Support Service, a government body independent of the Court, to help the new system take root without influence of the ward of court legacy. This paper follows the footsteps of the Irish legislative reform of the Ward of Court and studies the characteristics of the new assisted decision-making system. This paper aims to call for a paradigm shift and provide ideas for reform in Korea, where the substitute decision-making system still holds sway.

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