지적장애인에 대한 성년후견제도의 문제점

Abstract

When a person turns 19 years old, he or she is legally emancipated. An adult is presumed competent to make decisions in all areas of his life. This means that parents are no longer able to make decision on behalf of their children. People with intellectual disabilities have also the right to lead full and satisfying lives as others do. As adults, some people with intellectual disabilities are able to lead independent lives in the community without support. But some people have serious, lifelong limitation in functioning. Although they are considered a competent adult with legal rights to individual self-determination, they may not be able to rationally make the decisions required in life, such as where to live or what to spend money. If a person is unable to make daily decisions and lead a normal life, a parent or other person should help them as a guardian. On 1. July, 2013 Adult Guardianship is introduced in Korean Civil Code in order to care for the personal and property interests of an another person(ward) who is incapable of caring for his or her own interests due to mental illness, mental deficiency or intellectual disability. The individual seeking guardianship must file a petition for guardianship of the alleged person with disabilities(respondent). Guardians are appointed by the family court to represent the interests of disabled persons. Legal Guardianship is a formal, legal process in which a family court requested to assume responsibility for a person as a “ward” and then may appoint an “agent” to act as guardian. If an intellectually disabled person is deemed to be unable to make decisions and lead an independent life, an adult guardian may be appointed to handle the person’s affairs. The court may grant “limited guardianship” allowing the guardian to make only certain decisions. And “special guardianship” is created for the limited purpose of helping the incapacitated person with protective arrangements. There is another form of guardianship which is established by guardianship contract(voluntary guardianship) between the ward and agent for the present or probable future incapacity of the ward. Guardianship is a valuable tool which can be used to protect individuals who has not ability to make appropriate personal or financial decisions for themselves. However, there is much to be solved as follows:The guardianship contract is not appropriate for the people with intellectual disabilities insofar as the contract is only concluded by the person in question. The person with intellectual disabilities cannot decide by himself whether he needs any guardian or not. Further there is no provisions in Civil Code whether a parent can designate a successor guardian through will, or what if there is no one else who can serve as a successor guardian. Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship to have proven ineffective or are unavailable. If an individual has a disability, yet still maintains the capacity to make decisions in all areas of their life, guardianship is not necessary. A guardianship is a legal arrangement because other alternatives are inadequate to meet a person’s health and safety needs. So the best option is the “least restrictive” guardianship to support and promote the person’s decision-making skills and rights.