The Implementation Dilemmas and Solutions of the Appointed Guardianship System from the Perspective of the Protection of the Rights and Interests of the Elderly

 LI Dejian* & ZHENG Ran**

Abstract: In a deeply aging society, the appointed guardianship system, as an important arrangement for the protection of the rights and interests of the elderly, still faces many practical difficulties. Typical examples include: during the decision-making stage of whether to choose appointed guardianship, the lack of professionalism and availability of appointed guardians can easily hinder the elderly from choosing to apply it; during the establishment stage of appointed guardianship, the limited rules related to the appointed guardianship agreement can easily lead to the frustration of the elderly’s subjective will; during the operation stage of appointed guardianship, the insufficient accountability mechanisms for appointed guardians can easily lead to the infringement of the personal or property rights of the elderly. By reflecting on its jurisprudential causes, it can be found that the current law largely ignores the orientation of appointed guardianship as a welfare for the elderly in social law, the concept of substantive equality in the appointed guardianship agreement, and the theoretical attributes of the appointed guardianship as a fiduciary relationship. Therefore, the appointed guardianship system in China should be systematically improved to fully release its institutional potential in the protection of the rights and interests of the elderly based on these jurisprudential principles. In particular, it is possible to consider actively promoting the “trust + appointed guardianship” model and cultivating a team of appointed guardians by the state based on the concept of elderly welfare; strengthening the protection of notarization procedures and the reasonable design of the appointed guardianship agreement based on the concept of substantive equality; and refining the fiduciary standards of appointed guardians and strengthening guardianship supervision based on the nature of fiduciary relationship.

Keywords: protection of the rights and interests of the elderly ·  appointed guardianship · elderly welfare · substantive equality · fiduciary relationship