One. Guardianship Declaration
㈠ Guardianship Declaration and Qualifications for Application
In accordance with Article 14, Paragraph 1 of the Civil Code, when an individual is unable to express their intentions due to mental disorders or other cognitive deficiencies, or when they are unable to comprehend the effects of their expressions, the court can declare that person as a ward upon application by the petitioner, spouse, direct relatives, cohabiting relatives, prosecutor, competent authority, or social welfare institution.
㈡ Effect of Guardianship Declaration
The recent amendments maintain the previous provisions. Article 15 of the Civil Code explicitly states that a person declared as a ward lacks legal capacity, and all legal actions must be carried out by a statutory agent, namely the guardian, on their behalf. This provision aims to protect the rights and interests of the ward, ensuring they are not harmed by inappropriate legal actions.
㈢ Selection of Guardians and Allocation of Responsibilities Among Multiple Guardians
Articles 1110 and 1111 of the Civil Code establish the procedure for selecting guardians.
The court has the authority to select one or more individuals as guardians and, when necessary, can request the competent authority or social welfare institution to provide an investigative report as a reference for the selection of guardians. The selection of guardians will now be more flexible to better cater to the needs of the ward. According to the newly added Article 1112-1, when multiple individuals are selected as guardians, the court can, within its jurisdiction, specify that they jointly or separately carry out their duties. In this scenario, the court can consider the professional background and duties of the guardians to ensure comprehensive execution of their roles. Additionally, the court can, based on the application of the guardian, ward, or the petitioner under Article 14, Paragraph 1, revoke or amend previous designations. If the court selects multiple individuals as guardians but doesn’t explicitly define the scope of their duties, according to Article 168 of the Civil Code, these guardians’ acts of representation should be jointly executed.
㈣ Property Guardianship Duties
1. Preparation of Property Inventory:
To ensure proper management of the ward’s property, when selecting a guardian, the court will also appoint someone to prepare a property inventory. The guardian must prepare this inventory within two months and report it to the court. Until the inventory is prepared and reported, the guardian is only permitted to carry out necessary management actions (Article 1113 applies Article 1099, Paragraph 1).
2. Supervision of Property Management:
To prevent misuse of authority, the court has the right to request the guardian to provide reports on guardianship matters, property inventories, or settlement statements for inspection when necessary (Article 1103, Paragraph 2).
3. Limitations on Property Management:
(1) Guardians cannot dispose of property on behalf of the ward: Guardians only have management authority and not disposal authority. They can only dispose of or consent to disposals on behalf of the ward under the status of a statutory agent.
(2) Some acts require court permission: Certain significant acts such as buying or disposing of real estate, renting residential properties, etc., require court approval to protect the ward’s interests.
(3) Property cannot be used for investment: Guardians are prohibited from using the ward’s property for investment, with the exception of specific financial instruments like bonds, treasury bills, etc.
(5) Guardianship Duties for Care and Treatment
According to the newly revised Article 1112 of the Civil Code, when guardians carry out responsibilities related to the ward’s life, care, treatment, and property management, they should pay attention to and respect the ward’s intentions. They should also consider the ward’s physical and mental condition and living circumstances. This concept of “ward’s intentions” encompasses expressions made by the ward before the guardian’s selection.