我国成年监护制度运行中的问题及其立法修改趋向

The Current Problems and the Improvement of Adult Guardianship System in China

According to the concept of protection of the rights and interests of senior citizens, when senior citizens gradually lose their judgment, choosing a guardian who will protect their rights and interests according to their need is better than judging the degree of their judgment. In order to protect the rights and interests of senior citizens, the rule that when relatives served as guardian should be developed, the rule that relatives must keep in line if he want to be the guardian should be canceled, the social organization (legal person) should be allowed and encouraged to serve as guardian, and the administrative department should serve as the guardian when there is no proper guardian. In order to protect the rights and interests of the adult disability properly, daily supervision mechanism for the guardian should be established. It's necessary to find a supervisor for each adult disability who is taken care of by a guardian to supervise the guardian. Because only through the procedure of notarization can the contract concerning to guardianship be formed, it's must be sure that the guardian is capable to fulfill his duty before the beginning of the guardianship. 根据A年人权益保护的理念，当A年人逐渐欠缺判断能力时，司法不是去判断他丧失判断能力的程度，而是根据其需要选定保护其权益的监护人。完善亲属担任监护人规则，取消亲属担任监护人的顺位，允许和鼓励社会组织（法人）担任监护人，明确在没有合适的监护人的情况下应由行政部门来担任监护人。建立对监护人的日常监督机制，为妥善保护成年障碍者的权益，有必要为每一个被照顾的成年障碍者设立照顾监督人。意定监护合同需要通过公证程序才能成立，应确认在意定监护开始时监护人是具备履行监护职责的能力的。