Who will take care of these old people?
In the past two days, there is a particularly heart-wrenching sentence on the Internet: after the Spring Festival, 200 million people were "ruthlessly abandoned".
For every Chinese, Spring Festival means reunion and joy. But after the short Spring Festival holiday, young people will leave home and return to work. This kind of loneliness after the reunion is even more bitter for the old people who have tasted the reunion.
Many people only spend 7 days out of 365 days a year with their parents, and they are running around on the road of struggle, ignoring that their parents in their hometown actually need to be accompanied.
According to the "Research Report on the Guardianship of the Elderly" recently released by the Social Welfare Center of the Ministry of Civil Affairs and the Beijing Association on Aging, in recent years, the number of elderly people who are in the predicament of guardianship has increased significantly.
Among the 1,611 respondents, about 40% of the elderly are long-term empty nesters, about 40% are from childless families and lonely families, and about 13% are from families with disabilities7%, and about 8 percent of the elderly who have children but do not want to take care of them35%。Nearly 80% of the elderly are worried that when they have a sudden illness or encounter an unexpected situation, there is no one to take care of emergency medical treatment, afterlife and other related affairs.
Because of the death of their only son, Uncle Liu and his wife asked their niece to take care of their old age. To do this, they gave their niece a house and moved in with her. But after the death of his wife, he and his niece had a conflict over trivial matters in life, lived in a nursing home, and then sued his niece to repossess the house.
After her husband's death, Aunt Lu went to her son, who was working in other places, but unexpectedly, her daughter-in-law refused to let the old man enter the door for various reasons.
There are also some elderly people who have been "hunted": they were deceived into buying ** health care products, they lost a huge amount ......of money by fraudulent transfers, and they were even fooled into investing in P2P ** and lost all their money
The guardianship of the elderly is not just a person, but a protective net. Play a role in the process of the elderly gradually aging and incapacitating, protect his property and personal safety, and let him have something to support and rely on in his old age.
In November 2021, the Communist Party of China issued the "Opinions on Strengthening the Work on Aging in the New Era", which clearly regarded "improving the guardianship system for the elderly" as an important indicator for building an age-friendly society.
If an elderly person loses civil capacity, who should take care of it? Legally, there are three types of cases.
The first is legal guardianship. According to the law, parents, spouses, children or close relatives can become guardians of the elderly.
The second is intended guardianship. According to the relevant provisions of the Civil Code, voluntary guardianship refers to an adult with full capacity for civil conduct, who may consult with his close relatives or other individuals or organizations willing to serve as guardians in advance to determine his or her guardian in writing, and when he or she loses or partially loses his or her civil capacity, the guardian shall perform guardianship duties.
The third isIf the first two are missing, or cannot fulfill the guardianship responsibilities, Article 32 of the Civil Code stipulates that if there is no person with guardianship qualifications in accordance with the law, the guardian shall be served by the civil affairs department, and may also be served by the residents' committee or villagers' committee of the ward's domicile that has the conditions to perform guardianship duties. This is known as guardianship or"Guardianship".
Legal guardianship or close family guardianship is the most familiar guardianship method, but in modern society, the pressure on young people's lives has increased, and even if they are biological children, it is difficult to take on the responsibility of caring for the elderly alone. In addition, some parents are divorced, families are discordant, or relatives are limited by their own abilities, and the phenomenon of legal guardians not performing their duties has occurred frequently.
In this case, some elderly people choose the "intended guardianship" approach, appointing someone else to act as their guardian. In foreign countries, voluntary guardianship is a more commonly used form of adult guardianship. According to the statistics of guardians of the Supreme Court of Japan in the past 20 years, with the increasing aging rate, the proportion of guardians served by third parties (non-relatives) has increased year by year, from 100% grew to 80 in 20203%。
In 2012, China amended the Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly, and for the first time included "voluntary guardianship" in the law. After years of practice, China has explored a voluntary guardianship procedure led by notary public institutions, which has opened up a new way for the guardianship of the elderly.
According to reports, most of the provincial and municipal notary offices in the country can now handle the notarization of intended guardianship. In economically developed or aging areas, the number of elderly people choosing voluntary guardianship has increased significantly. In addition to close relatives, elderly people usually choose trusted relatives and friends to be their guardians.
But who can guarantee that a intended guardian will be able to perform his or her duties better than a legal guardian? Due to the lack of blood relationship, the guardianship capacity and ethics of the intended guardian are more likely to be questioned, and even lead to legal disputes.
Take the once sensational case of "Shanghai old man donating real estate to a fruit seller" as an example. The hawker's family took care of Mr. Yau's later life, and Mr. Yau donated his property to the hawker out of gratitude. But after the news broke, the family of the old man sued and demanded that the hawker return the property. Voluntary guardianship also involves many more complex legal relationships in practice, which need to be further clarified and refined in practice.
In recent years, there have also been cases in which neighborhood committees have acted as guardians of lonely and widowed elderly. For most neighborhood committees, the guardianship of the elderly is a new and thorny issue. On the one hand, the issues to be dealt with by the guardianship of the elderly are relatively complex, and the neighborhood committees usually do not have special personnel and professional capabilities to deal with related issues; On the other hand, the guardianship behavior of the neighborhood committee may not be recognized by other entities. For neighborhood committees or civil affairs departments that passively assume guardianship responsibilities, it is inevitable to seek help from professional institutions.
The guardians of social organizations broke ground
Ms. Chen, 78, who lives in Beijing, told me that she was desperate and chose a social organization to be her guardian and that of her daughter.
Ms. Chen's only daughter suffered from bipolar disorder and was dying because of her refusal. In desperation, her husband suffered a cerebral infarction and passed away in 2022. Ms. Chen wants to sell a property in her husband's name to alleviate the embarrassment of life. However, the daughter refused to cooperate with the formalities. With the help of lawyer Zhou Bingbing, Ms. Chen finally sold her house and her life became much more comfortable. In order to avoid being "hunted", she signed a special needs trust contract and entrusted her property to a professional institution to manage it.
Since her daughter lacked civil capacity, Ms. Chen chose her nephew as her guardian. But once she was sick and needed someone to accompany her, but her nephew couldn't come back because he was living in a foreign country. She asked Lawyer Zhou, "Can you or the law firm be my guardian?" "It is too much responsibility for any natural person to take care of two generations, and law firms cannot act as guardians due to the division of labor and the scope of business. What you need is a comprehensive governance structure, combined with special needs trusts, social guardianship, inheritance, estate management, medical wills and other service systems, to connect different legal systems. Lawyer Zhou explained.
After repeated deliberations and discussions, at the end of October 2023, Ms. Chen signed three agreements on entrusted guardianship, intended guardianship and will-appointed guardianship, under which a non-governmental organization, Beijing Chaoyang District Kang'ai Home Social Welfare Service Office (hereinafter referred to as "Kang'ai Home"), will act as the full-time guardian of Ms. Chen and her daughter, and DOCVIT Law Firm will play the role of guardianship supervisor under the prescribed circumstances.
This is the first case in Beijing in which a social organization is used as an adult guardian, and it is also the first case in the country that connects a special needs trust and a social guardian.
What are the advantages of social organizations as guardians compared to natural persons? “Social organization guardianship can help the elderly in 4 areas: behavioral assistance, financial management, health services and emotional support, and it is difficult for a natural person to fully assume these responsibilities alone。A natural person is a person who does guardianship, and a social organization is a group of people, an institution, an organization and a mechanism. The guardianship of a natural person is a private act, which is based on conscience and is difficult to supervise; Social organizations bear legal responsibility, accept the supervision of public powers, and are open and transparent. Compared with natural persons, social organizations are highly specialized and resourceful, and are more capable of handling various guardianship affairs for the elderly. ”
"Many people are worried about what will happen if the social organization that serves as a guardian is closed. As a non-governmental organization, first of all, it cannot be closed casually; Second, its statutory duties do not disappear because of the closure. If it closes for some reason, its competent unit must find an agency to take over its guardianship duties, or even take on guardianship responsibilities on a temporary basis. ”
As a non-governmental organization under the supervision of the Women's Federation of Chaoyang District, Beijing, "Kangai Home" has been engaged in legal aid for the elderly, women, children and the disabled since its establishment 10 years ago, and has a mature volunteer team. It has a long-term cooperative relationship with a well-known elderly care service organization in Beijing, and can link the resources and services required for elderly care in a timely manner. She is a lawyer with decades of practice experience and a senior public welfare person, serving as a member of the executive committee of the Chaoyang District Women's Federation and a director of the Chaoyang District Women and Children's Public Welfare Charity Promotion Association.
In recent years, similar guardianship cases have been emerging across the country. In Guangzhou, Shanghai, Nanjing, and other places, social organizations have emerged to perform guardianship functions. Socialization of guardianship, with non-relatives or social organizations serving as guardians, has become the general trend.
In August 2020, the first social organization in China to provide adult guardianship services, Shanghai Minhang District Dushan Social Guardianship Service Center (hereinafter referred to as "Dushan") was officially established. Up to now, "Best" has accepted more than 200 consultations, in-depth docking and tracking of more than 80 cases, and signed about 20 intended guardianship agreements. Two of the elderly people in their custody have passed away peacefully.
Founded in 2023, the Nanjing Gulou Sunshine Guardian Family Service Center (hereinafter referred to as "Sunshine Guardian") brings together a group of like-minded parents and volunteers from all walks of life. Not long ago, "Sunshine Guardian" signed a guardianship agreement with an 89-year-old man surnamed Chen to perform guardianship duties after the old man became incapacitated and take custody of his disabled daughter.
Rely on the system, but also rely on people
With social organizations, will we be able to do a good job in the guardianship of the elderly? What if social organizations do not act? What should be done if social organizations use their power to embezzle the property of the elderly?
According to the research report on the guardianship of the elderly, the highest demand of the elderly for the national guardianship system is to provide guardianship supervision, followed by the establishment of guardianship selection mechanisms and relief channels, as well as the establishment of a registration and filing system, and put forward other demands such as strengthening medical assistance and elderly care.
Responsibilities are segregated and risks are diversified. Lawyer Wang Yanzhuo said. The functions of personal guardianship, estate management and inheritance are separated, the guardian is only responsible for the personal guardianship of the elderly, the property of the elderly is managed by the trust company, and the estate is inherited by the heirs, which is the arrangement of the "special needs trust + social guardianship dual system core" that he strongly promoted.
Jin Jinping, an associate professor at Peking University Law School and director of the Non-Profit Organization Law Research Center at Peking University Law School, believes that in the voluntary guardianship system, it is necessary to explore the construction of a supervision mechanism for the intended guardian, clarify the relevant rules between the duties and rights of the guardian, and clearly define the standards for the guardian to perform his or her duties. In addition, how to connect the guardianship systems of special needs trusts is also worthy of further attention and consideration.
In addition to the issue of supervision, how to charge for the guardianship of the elderly is also a point of concern. In the intended guardianship agreement signed between "Sunshine Guardian" and Mr. Chen, "Sunshine Guardian" does not charge as a guardian, but relies on social donations to solve the problem of guardianship costs. "We are a parent organization and we don't want to go the commercial route. ”
Socialized guardianship fees for the elderly are required. Otherwise, the social organization as a guardian cannot function. However, it needs to reflect a certain degree of public welfare. If the elderly are unable to afford the difficulties in life, they must be fully or partially borne by ** or society. Li Chenyang thinks.
In Minhang District, Shanghai, the elderly can clarify their guardianship and guardianship responsibilities through an intentional guardianship agreement, and make arrangements for the disposal of their assets and funds by proposing a notarization of asset disposal, notarization of fund custody and notarization of wills. When the elderly person loses or partially loses the ability to act, the notary public shall perform the corresponding asset and fund payment obligations in accordance with the previous asset custody agreement.
For Ms. Chen, finding a social organization as her guardian through intentional guardianship and a reliable property administrator through a special needs trust has finally provided a reliable guarantee for her later life. "After making this series of preparations, I feel completely at ease. She said.
Things are still going in a good direction. After my daughter was admitted to the hospital, her condition improved day by day. One day, she hit ** and asked her mother, "Don't you want me?" * At this end, Ms. Chen couldn't help but burst into tears: this was the first thing her daughter said to her calmly after many years of illness. "It was as if I had woken up from a nightmare that had been going on for years," the daughter said. ”
Today, Ms. Chen's daughter is recuperating at home, and her relationship with her mother is getting better and better. After years of ups and downs, with the help of good social forces and professional services, Ms. Chen's family finally ushered in a peaceful and happy life.
Relevant experts from the Welfare Center of the Ministry of Civil Affairs put forward suggestions in the "Research Report on the Guardianship of the Elderly": introduce special legislation on the guardianship of the elderly, establish a guardianship system for the elderly, establish a coordination mechanism for the guardianship of the elderly, cultivate and develop professional guardianship service organizations, explore the community care model of the elderly and disabled families, and incorporate guardianship services into the basic pension service system. In the future, it is hoped that more elderly people will benefit from socialized guardianship.