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A Study on Japan's Guidelines for Adult Guardianship Based on Decision Support

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2023, 11(4), pp.365-394
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : November 8, 2023
  • Accepted : November 25, 2023
  • Published : November 30, 2023

Oh, Ho-Cheol 1

1화성의과학대학교

Accredited

ABSTRACT

It has been over a decade since South Korea abolished the traditional system of incompetency and quasi-incompetency under civil law, replacing them with a new adult guardianship system. The new adult guardianship system was anticipated to prioritize the respect for self-determination, the utilization of residual capacity, and normalization as its guiding principles. However, despite South Korea's ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), there is still a demand for the abolition of the substitute decision-making system, where third parties make decisions on behalf of adult wards under guardianship, and a transition towards decision support. Consequently, there exists a significant issue regarding the alignment between the UNCRPD and South Korea's adult guardianship system. Japan, which implemented the adult guardianship system earlier than South Korea, is also facing demands for a transition from substitute decision-making to decision support in compliance with UNCRPD. As a result, following the announcement of the “Basic Plan for Promoting the Use of the Adult Guardianship System” on March 24, 2017, Japan began to review guidelines for decision support. This shift in focus aims not only to prioritize property management by guardians but also to understand the preferences and characteristics of adult wards under guardianship, enabling appropriate consideration. Consequently, Japan's Ministry of Health, Labour and Welfare started releasing various decision support guidelines from March 2017. In October 2020, the Supreme Court of Japan, along with the Ministry of Health, Labour and Welfare and professional organizations, promulgated the "Guidelines for Adult Guardianship Based on Decision Support." These guidelines were created to provide reference and support for all types of guardians, including professional guardians, family members, and community-based guardians, in carrying out guardianship duties based on decision support. As such, these guidelines aim to facilitate a better understanding and practical application of decision support among practitioners. Consequently, Japan's guidelines may serve as valuable reference material for South Korea. This paper examines the content of decision support within the framework of the UNCRPD and investigates how Japan's guidelines align with the proposed principles of the UNCRPD, shedding light on the specific methods through which practitioners in South Korea can provide decision support, offering valuable insights.

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