Investigate motivations.
Recently, Wang Shuying, a 92-year-old resident of Chaoyang District, Beijing, revealed to reporters her long-term worries: his wife has "left", he has no children, and now he is incapacitated and lonely, who can he entrust the rest of his life to?
Finding a reliable guardian to solve her problems in life, medical treatment, and property management is Wang Shuying's top priority. And this is also the common voice of many lonely and widowed elderly people. With the advent of an aging society, more and more people are facing the same dilemma as Wang Shuying.
Who will act as their guardian? The Civil Code provides a system of voluntary guardianship for this group and clarifies that an "organization" can become a voluntary guardian.
The reporter conducted an investigation and interview on the development of this system.
Comics: Gao Yue.
Ms. Li, an 80-year-old Beijing citizen, and her husband, who is in his 80s, are both retired researchers from a scientific research institution, and they also have a daughter in her 50s with multiple intellectual and mental disabilities. Ms. Li's husband fell due to cerebral thrombosis two years ago, and after being sent to the hospital, he was clinically diagnosed with multiple diseases and required long-term hospitalization, and was no longer able to take care of his disabled daughter.
This left Ms. Li with a dilemma: if the couple is disabled and demented, and their daughter has multiple intellectual and mental disabilities, who will take care of them? And once the couple dies, who will take care of the daughter?
After many consultations, Ms. Li learned about the intended guardianship system. Not long ago, after notarization, Ms. Li finally put her mind at ease, and her posthumous affairs have finally been settled - according to the intended guardianship system stipulated in the Civil Code, she signed a series of intentional guardianship agreements with a state-owned enterprise under the original unit and notarized, once she partially or completely loses her civil capacity, the state-owned enterprise will be her guardian.
The reporter of the rule of law **" recently investigated and interviewed and found that like Ms. Li, there are not a few people who cannot find a suitable guardian because of the special circumstances of the family, so they hope for guardianship. However, there are not many people who have actually found a suitable social guardianship service organization to act as their guardian in the event of partial or total loss of civil capacity. Many respondents with relevant experience reported that there are very few organizations that can serve as intended guardians.
The interviewed experts believe that there is a very urgent practical need for social guardianship service organizations to serve as intended guardians, but there are still some deficiencies in the implementation of the situation. This is due to both the lack of conceptual acceptance of the new system and the lack of supporting measures for the intended guardianship system. Therefore, it is necessary to accelerate the cultivation and development of social guardianship service organizations that can serve as guardians and respond to social needs. At the same time, a professional guardianship system should be established from the aspects of access qualifications, performance requirements, and guardianship functions, and relevant supporting laws and regulations should be formulated around the guardianship system intended by the Civil Code.
Unable to find a suitable guardian, the intention of guardianship came into being.
At first, Ms. Li placed the responsibility of guardianship of her family on the family. She first thought of the juniors of her relatives, one of whom was her daughter's cousin. But when she raised the matter with her, the other party was reluctant, and her children were adamantly opposed. Considering that other relatives did not have suitable candidates, she had to give up the idea of asking her relatives to be her daughter's guardians.
In October 2023, by chance, Ms. Li met Yang Jun, a lawyer in Beijing, who suggested that Ms. Li choose the intended guardianship and have the organization serve as the guardian.
According to the provisions of the Civil Code, an adult with full capacity for civil conduct 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 capacity for civil conduct, the guardian shall perform guardianship duties.
After many communication and explanations, a wholly state-owned enterprise under a scientific research institution was willing to serve as Ms. Li's guardian, and once Ms. Li became incapacitated and demented, the state-owned enterprise would perform guardianship duties. At the same time, the state-owned enterprise was appointed as the guardian of the daughter through a will to perform guardianship duties.
In November 2023, Ms. Li sought legal help from the Beijing Jingcheng Notary Office, and was received by Wang Juemin, director of the International Wills Center and the China Legal Guardianship Center of the Beijing Jingcheng Notary Office.
According to Ms. Li's ideas and demands on the future living arrangements, combined with the current situation of her family members and property, Wang Juemin started from understanding the background situation, to providing advice and proposing comprehensive solutions to problems according to the specific situation, drafting a series of legal documents to form the implementation plan on her behalf, and finally notarization, helping her complete a series of notarization matters such as intended guardianship and supervision, guardianship entrustment, will-appointed guardianship, living wills and property arrangements as quickly as possible.
In mid-December 2023, the comprehensive legal service case involving wills and guardianship notarization was completed, and Ms. Li was very satisfied with her future living arrangements, and she was finally down-to-earth and at ease.
Meng Qiang, a professor at the Law School of Beijing Institute of Technology and director of the Civil Code Research Center, told reporters that China has traditionally implemented home guardianship and family guardianship, which is also the main form of society at present, but since the reform and opening up, China's socio-economic, cultural and demographic structure has undergone tremendous changes, and there have been childless families, special family planning families, disabled families, and empty-nest families. In terms of guardianship, it is difficult for these families to have their own children and close relatives act as guardians. "China needs diversified guardianship methods to protect the legitimate rights and interests of wards, especially the elderly, so the intended guardianship system came into being. ”
Special family needs are urgent, and reliable guardianship organizations are hard to find.
Yang Jun admits that it is beyond her expectations to be able to find a social guardianship service organization and supervisor for Ms. Li in a relatively short period of time and notarize it, because many similar families she has contacted before have not been able to take this step. A common dilemma is the lack of organizations in society willing to take on guardianship responsibilities.
Yang Jun once had a headache because "I really can't find a guardianship service organization". She has an autistic son, Liang Liang, who is in his 20s this year and has completed junior high school and vocational high school.
Because of the special situation of the family, she began to pay attention to the intended guardianship very early on, and wanted to arrange a future life for Liangliang. At first, she wanted to find Liangliang's cousin and cousin to be her guardian, but she thought that her peers would not see each other a few times a year, and they lacked understanding of each other, so it was a question whether they could fulfill their guardianship duties. In society, there are indeed few organizations that specialize in social guardianship services.
Since many families are facing the same problem, why not do it yourself? At the end of 2017, some parents of autistic people from Beijing, Shanghai, Hubei and other places launched the "Star Town" project in Jinzhai County, Anhui Province, with the investment of parents, in accordance with the "dual care" model of adult autism care and parent care, including the design of the intended guardianship model. Yang Jun is one of the parents.
In the interview, the reporter learned that there are not a few people who have the same experience, and in a group of 500 autistic parents, many parents hope that the social guardianship service organization will "start as soon as possible".
Xiao Yang, a researcher at the Women's Research Institute of the All-China Women's Federation, said that relevant data show that there are about 25.8 million people with mental disabilities in China, involving more than 80 million families. Due to mental imperfection, most of them have impaired cognitive ability, poor language expression and self-control ability, and cannot or cannot fully recognize their own behavior, and are persons with no or limited civil capacity, and need the guardianship of guardians.
Xiao Yang took autism disorder as an example, China's earliest diagnosis of autism was in the early 80s of the 20th century, with the passage of time, the early diagnosis of autism disorder has been about 50 years old, their parents are old and frail, lost the ability to continue to monitor and care, and, from the perspective of parents, they will encounter difficulties such as medical treatment and admission to nursing institutions, such as the rescue must have a child signature, but the child is incapable of civil conduct, can not do.
What worries these parents even more is that once they pass away, who will take care of their children with mental disabilities? Can family assets still be used for children? Determining who is the guardian will ensure the child's quality of life in the future? These have become unavoidable questions. Xiao Yang said.
Merlin, who is in her 60s this year, has an autistic son with her husband, and in order to solve the problem of entrusting the child after the couple grows old, she has paid attention to the intended guardianship many years ago. "When I am busy with work, I rarely think about my old age and the future of my children; When I retired, my children were adults, and I had nowhere to go after graduating from vocational high school, I felt that this matter was becoming more and more urgent, and I was anxious about how to arrange the second half of my child's life. ”
Merlin's husband is an only child and has no siblings, she has two younger sisters, but both live abroad, and only one nephew lives in Beijing. Merlin didn't want to impose the responsibility of caring for his autistic son on his nephew, after all, it was a lifelong thing, and his nephew was not obligated to do so.
By chance, Merlin came into contact with the intended guardianship and thought that this was the most suitable choice for him. Her idea was to sign an agreement with a social guardianship service through intended guardianship, and when the couple grew old, the latter would act as the guardian of the child, and arrange the child's life as if it were a profession.
But as the years passed, Mr. Merlin found that there were very few organizations in Beijing that specialized in guardianship services, "with few institutions to choose from," and that there were no institutions to oversee social guardianship organizations. "If there is no supervisor, how can I feel comfortable entrusting my son's life to a social guardianship service organization? ”
At the end of the interview, Merlin expressed her expectations to reporters: "Social guardianship services have sprung up for families like ours to choose from. ”
It takes time to change the concept, and the supporting system is not perfect.
On July 1, 2013, the revised Law on the Protection of the Rights and Interests of the Elderly stipulates that "the elderly who have full capacity for civil conduct may negotiate and determine their guardian among their close relatives or other individuals or organizations who are close to them and willing to assume guardianship responsibilities." When the elderly lose or partially lose their capacity for civil conduct, guardians bear guardianship responsibility in accordance with law. Where a guardian has not been determined in advance for the elderly, and when they lose or partially lose their capacity for civil conduct, a guardian is to be determined in accordance with the provisions of relevant laws. ”
On January 1, 2021, the Civil Code came into effect, providing for adult legal guardianship, testamentary guardianship, agreed guardianship, appointed guardianship, public guardianship and intended guardianship.
Xiao Yang believes that the provisions of the Civil Code conform to the development of the times and the needs of China's aging society, especially the provisions that the effect of intended guardianship is better than that of legal guardianship, which is conducive to solving the problem of guardianship of two generations of special families.
Meng Qiang believes that although the Civil Code and the Law on the Protection of the Rights and Interests of the Elderly provide the basic institutional basis for intentional guardianship, social guardianship service organizations have not yet "flown into the homes of ordinary people". On the other hand, the supporting system is not perfect, such as the registration system and supervision system of the guardianship.
Li Xin, an associate professor at the School of Law of Jiangnan University, believes that although the Civil Code clarifies that "organizations" can become intended guardians, which is the institutional basis for social guardianship service organizations to serve as intended guardians, the detailed rules still need to be improved.
Lack of guardianship and supervision. Social guardianship service organizations serve as intended guardians, whether it is a continuation of the '** or 'affairs assistance' framework, the lack of the ward's ability to do so (unable to supervise whether the guardian is in accordance with his own wishes) often makes the original guardianship system unbalanced, relying only on the intended guardianship agreement between the parties or can not better protect the ward's major personal and property interests, the need for prior and in-process supervision, the establishment of a new supervision system and the improvement of rules and other practices also need to be carried out step by step. Li Xin believes that this has led to a lack of social guardianship service organizations that are difficult to meet people's needs.
Improve the supervision and supervision system, and introduce detailed rules for the implementation of guardianship.
According to public information, some localities are already exploring the establishment of social guardianship service organizations.
In August 2020, Shanghai established the country's first professional guardianship service center specializing in social guardianship services. In November 2021, the first social guardianship service center in Guangdong Province, the Harmonious Social Guardianship Service Center, was established. In October 2023, the Beijing Association on Aging organized a team of experts to formulate and release the Guidelines for Voluntary Guardianship Services for the Elderly.
Meng Qiang said that China's guardianship system is being reformed, and one of the contents of the reform is to liberalize the scope of guardianship, introduce other individuals or organizations that are not close relatives to serve as guardians, and emphasize the responsibility of civil affairs departments, neighborhood committees and village committees. Therefore, in order to better implement the intended guardianship system provided for in the Civil Code, the competent departments should accelerate the cultivation and development of social guardianship service organizations that can serve as guardians. For example, at the social level, carry out the popularization of legal knowledge and skills such as care and nursing at the social level, and vocational skills training, facilitate the registration and practice of relevant social organizations, improve the supervision and supervision system, and provide material assistance and legal safeguards for wards.
Li Xin believes that the local practice and cases of the intended guardianship system should be used as a blueprint, and the local legislation should gradually make detailed provisions on the guardianship supervision of social guardianship service organizations, and the guardianship supervision measures include the registration of guardianship agreements, the active guardianship report of social guardianship service organizations, and the guardianship review of civil affairs and other departments.
Explore new models of operation for social guardianship service establishments, guide positive interactions between various stakeholders in the guardianship relationship, and promote the complementarity of public services and market services. Li Xin suggested that legal guidance should also be strengthened for social guardianship service organizations that serve as intended guardians. clarify the distinction between the responsibilities of "guardianship" and "care" and "escort"; It is allowed to delineate guardianship responsibilities according to the type of guardianship; Focusing on the guardianship concept of "assisting in decision-making", standardize the guardianship authority and obligations of guardians of social guardianship service organizations; Clarify the legal responsibility for improper guardianship.
In Li Xin's view, it is also necessary to strengthen the legal governance of social guardianship service organizations that undertake the duties of intended guardianship, such as stipulating the professional qualifications of social guardianship service organizations, the guardianship framework, the beginning and termination of guardianship, conflicts of interest and recusal of guardians, and other detailed rules.
The interviewed experts also suggested that under the framework of the Civil Code, the legislature could issue separate regulations on the voluntary guardianship system to provide a normative basis for the healthy development of voluntary guardianship, including social guardianship service organizations.
Li Xin believes that in order to promote the response of the intended guardianship system to the needs of individual pensions, after accumulating a lot of practical experience in the future, it is expected that under the guidance of the concepts of "respecting the right to make independent decisions" and "assisting in decision-making", the legislature will issue separate regulations on the intended guardianship system, or the judicial organs will issue detailed rules for the implementation of guardianship.
The intended guardianship system has not been widely used in practice, and the relevant provisions of the Civil Code are relatively brief, and the relevant judicial interpretations only supplement the dissolution of the intended guardianship agreement and the revocation of guardianship qualifications. Meng Qiang said.
He believes that relevant laws and regulations and even departmental rules can be used to improve the relevant supporting systems around the guardianship system stipulated in the Civil Code. For example, the registration system for voluntary guardianship, the supervision and supervision system for intentional guardianship, the organization, cultivation and management system for social guardianship service organizations and individuals engaged in tasks related to voluntary guardianship, and the precise assistance system for specific vulnerable groups that need to establish voluntary guardianship.
In some countries with legislation on the intended guardianship system, it is required that after the two parties reach an intentional guardianship agreement, the agreement also needs to be filed and registered with the public authority, so that the third party of the transaction can make inquiries, protect the security of the transaction, and avoid disputes after the fact. Meng Qiang called for the addition of a registration system for intended guardianship in relevant laws and regulations in the future, so that this system can balance the interests of guardians, wards and third parties, and better play the expected functions of the intended guardianship system.