발달장애인을 위한 후견계약과 개선과제

Abstract

Generally an adult over 19 years old is presumed to make decisions in all areas of his life. People who suffer from a mental illness or handicap, a degenerative disease or some other kind of disability may not be able to make decisions about their financial, legal, medical, or personal affairs. They may be unconscious and unable to decide anything, including where and how to live. They need an adult guardian. On 1. July, 2013 adult guardianship institution is introduced in Korean Civil Code in order to care for the personal and property interests of a person who is incapable of caring for his or her own interests due to mental illness, mental deficiency or developmental disability. A guardianship is a relationship by which one person(the guardian) acts for another(the ward), who is regarded as being incapable of managing his or her own affairs. A guardian has authority to make personal decisions for the ward, such as where and under what conditions the ward will live. A guardian may also decide about his finances, medical and personal care, or both. The family court can appoint a guardian only if the court determines that a person is incapacitated and the services of a guardian are necessary. 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 the guardian for the present or probable future incapacity of the ward. The guardianship contract is an agreement whereby the guardian of an elder or incapacitated adult grants guardianship to another person. The agreement grants all of the rights and power of guardianship such as the power to obtain medical services and make decisions regarding the incapacitated adult’s general welfare. The guardianship contract, however, is not appropriate for the people with developmental disabilities insofar as the contract is only concluded by the person in question according to Civil Code. The person with developmental disabilities cannot decide by himself at all whether he needs any guardian or not. Further there is no provisions in Civil Code whether the parents can designate a guardian for surviving disabled children in the event that they become deceased. So it is necessary to establish the provisions which allow the parents to nominate a guardian in the event they pass(Guardianship Clause in a Will).