The Study on Alternatives to Adult Guardianship in Taiwan from the Perspective of Legal Regime of the United States

• Main Authors: TAN, CHENG-YU, 譚丞佑
• Other Authors: SHYU, HUEI-YI
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/17448203438463707051

碩士 === 國立臺北大學 === 法律學系一般生組 === 104 === With the improved living standards and advancements in healthcare, the population over the age of 65 in Taiwan exceeds 7% of the total population in 1993, marking the start of "aging society". This figure is further predicted to increase to 14% in 2018 and to 20% in 2024. Along with the development of modern society, nuclear family gradually replaces extended household to be the mainstream in Taiwan. The traditional method to appoint guardian for mental illness (ward) thus becomes insufficient to protect ward's right when the society is experiencing such change. In order to well protect the right of ward, the adult guardianship system in Taiwan was once amended from Interdiction to guardianship in 2008. However, if carefully examined, deficiencies of protection can still be found in some articles. Also, the UN Convention on the Rights of Persons with Disabilities provides our Country a benchmark to reassess the existing civil laws related to adult guardianship, to ensure the protection of the rights of the ward is firm and solid. According to the Doctrine of Least Restrictive Alternative, the power of guardian in the United States is restricted to the specific loss of capacity by the ward, reflecting the respect to the ward's existing capacity. In addition, the requirement for petition of guardianship includes an explanation of the necessity of guardianship; if the ward's property or person is properly arranged by himself or herself, it is considered a lack of necessity of guardianship. Furthermore, since the responsibility, supervision, and authority of guardian between the U.S. and Taiwan are quite different, this thesis refer to the differences, and identify the strengths of the U.S. as reference for amending the Taiwanese law in the future. There also exists alternatives to guardianship to replace the traditional guardianship system. Though the alternatives to guardianship is not allowed in Taiwanese existing laws, the use of Mandate and Trust to manage ward's property is permitted. This thesis will thus detail two kinds of alternatives to guardianship systems in the U.S., namely Durable Power of Attorney and Trust, and discuss the feasibility of such implementation in Taiwan.