미국 뉴욕 주의 성년후견 심판절차

A Study on the Procedural Concerns of Adult Guardianship in the State of New York, the U. S. A.

In the United States of America, a guardianship system has been a state issue instead of a federal one historically. Thus every state has a statute law to grant the court a right to appoint a guardian for those who need one. In State of New York, Mental Hygiene Law has provisions about adult guardianship in Article 81. In 1993, the State of New York fundamentally reformed the guardianship system to establish a system to meet the diverse and complex needs of those who need a guardian and ensure due process. Since then, there have been several revisions(2004, 2008, 2009, 2010 and 2011). The legislation purpose of the act was to establish an adult guardianship system not only to meet the needs of the personal and property management according to individual needs, but also to offer those who need a guardian the greatest amount of independence and self-determination and opportunities to participate in all decisions affecting their lives by taking into account their own wishes. Judgment of guardianship commencement requires careful procedures to ensure due process for an incapacitated person as it restricts his or her capacity and property management and thus causes significant effects on his or her interest. In the State of New York, there are rigorous provisions for functional approaches and procedural requirements to fulfill those legislation purposes. In the State of New York, Mental Hygiene Law contains provisions about the notice of case continuance and the guidance of procedures in order to grant an opportunity to participate in the guardianship judgment procedure to the allegedly incapacitated person. There is no provision about the notice of case continuance in the Domestic Litigation Act and the Non-Contentious Case Litigation Procedure Act in Korea. Thus there is a need to establish provisions about the notice of case continuance like service of process in civil case procedures in order to guarantee the hearing claim of litigants practically. It is important for the principal to appear in the court on the day of hearing since he or she can leave his or her specific impressions on the judge by doing so. The State of New York allows a principal to get a hearing where he or she currently lives when he or she cannot appear in the court due to physical limitations. When there is shortage of procedural consideration, the purpose of respecting the self-determination of the principal in substantial law cannot be fulfilled. The judge’s obtaining first-hand impressions in a hearing makes the central part of authority detection. Thus it is necessary for the judge to interrogate the principal him or herself in a trial to commence or terminate adult guardianship.