신상영역에서의 의사결정능력 - 영국법을 중심으로 -

초록

Generally, adults who have difficulties in making their own decision because of dementia, intellectual or developmental disabilities, or mental disabilities and so forth, are vulnerable to exploitation, neglect or abuse. It is consequently necessary to protect these vulnerable adults, which should however be attained without infringing their autonomy and freedoms. That is one of the major purpose of abolishing the current judicial declaration of legal incapacity regime and implementing the new “Adult Guardianship” system in Korea. The revised Korean Civil Code for instance dose not restrict adult wards’ right to make their own decision in the matters of personal care, as long as they have the capacity to do so. However, the revised Korean Civil Code does not provide for any guidance as to how the capacity of adult wards to make such decisions can be assessed. In this respect, the Mental Capacity Act 2005 of England and Wales and the practice based on it can be a good example which Korean lawyers can refer to. Under the Act, adults must be assumed to have capacity unless it is established that they lack capacity. A person lacks a capacity to make his/her own decision if he/she is unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or to communicate his/her decision through any means. What is important is that the assessment of capacity should be time and issue specific. Moreover, the court competent for adult guardianship cases should follow less restrictive principle in the cases where it decides to grant what authority on the deputy or where it has to decide anything on behalf of the protected persons. This principle should also be applied to a court appointed deputy. A court appointed deputy should make a decision on behalf of ward only if he knows or has reasonable grounds for believing that the ward does not have a capacity to decide on that matter. Taking into account principles and provisions of the Mental Capacity Act 2005, one can say that it is based on the “functional” approach of assessing mental capacity. Functional approach asks whether, at the time the decision had to be made, the person could understand its nature and effects. Its premise is that mental capacity of intellectually disabled persons tends to be fluctuating, depending on time and issues to be decided, while the same thing applies to demented adults with their capacity being gradually declined. This approach is in clear contrast with the status approach, on which the current “Judicial Declaration of Incapacity” regime is based, and which still remains in the new “Adult Guardianship System.” Without introducing the said functional approach into the interpretation of the revised Korean Civil Code and into the operation of the new adult guardianship system, the revised Korean Civil Code cannot meet the principles and provisions of UN Convention on the Rights of Persons With Disabilities, which Korea has already ratified in 2008.

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