실질적 자기결정존중의 관점에서의 후견계약의 평가와 의사결정지원방안의 모색

The Evaluation of Contract for Guardianship and Measures for Supported Decision-making from the view of Substantial Respect for Self-determination

The old Korean Adult Guardian System limited the legal capacity of the ward without exception and granted the adult guardian comprehensive power of attorney. Therefore, the 2013's new Korean Adult Guardian Systems has moderated the uniformity of the exclusion of the legal capacity of the ward and has granted the possibility of the limitation of the guardian's power of attorney. But the new consistent statutory guardianship types; full adult guardianship and limited guardianship, do not meet the criteria for the protection of the Rights of Persons with Disabilities in the CRPD. That is called by substitute decision-making system and has been faced the criticism to infringe on the autonomy and human rights of the persons with impaired decision making ability. The Committee on the Rights of Persons with Disabilities have strongly emphasized the change from substitute decision-making to supported decision-making in Concluding Observations on the initial report about the Republic of Korea. On the other hand, the Contract for Guardianship ;Contractual Guardianship, as an alternative system of consistent statutory guardianship, meets the requests of the CRPD in that it is based on self-determination and there is no limit of legal capacity. It reach not only economic and financial matters but also health and medical issues and other personal matters such as the place of the residence of Granter. But It is not available for th persons who are already sufficient capacity or weak at that time of contract, because it requires the legal capacity of granter. Besides, there is a risk that the attorney who is powered by the contract, may ignore the will or the hope of the granter. I propose that the supported decision-making may be performed by a notary and other persons, including family, relatives, friends, social service officials, and a social workers; in the process of concluding of contract. And I think that the advance directives, which may be written with the contract for gurdian, will be useful for knowing the will of granter who cannot express his intent any longer. The advance directives may address welfare management and other personal matters, and also economic and financial matters.