At present, my country's population over 60 years old exceeds 320 million, and there are about 35 million disabled elderly people. Some things that "no one can entrust" have become real problems faced by some elderly people, such as who will sign for the operation, who will take care of them on a daily basis, and how to deal with their property. Article 33 of the Civil Code stipulates that an adult with full capacity for civil conduct may select his or her guardian in writing in advance and agree that guardianship shall take precedence over legal guardianship.
What is voluntary guardianship? How to apply for voluntary guardianship? Since this year, Shanghai, Beijing and other places have successively introduced relevant policies to promote the implementation of the voluntary guardianship system for the elderly.
Who will take care of you in your old age?
The old man decides in advance
What is voluntary guardianship?
An adult with full capacity for civil conduct may designate his or her guardian in writing in advance, and the guardian shall perform guardianship duties when he/she loses or partially loses capacity for civil conduct.
Who is suitable for application?
Elderly people living alone, elderly people who have lost their only child, elderly people whose children are overseas or whose parent-child relationship is estranged, "elderly and disabled" families, DINK and single people, etc.
How to do it?
At present, there are two main paths: one is to apply to a notary institution for notarization of the intended guardianship agreement; the other is to complete the establishment under the participation and witness of the local neighborhood (village) committee and others.
In September this year, Mr. Meng, who is in his 70s, came to the Putuo Notary Office in Shanghai to apply for notarization of intended guardianship. Many years ago, after Mr. Meng divorced, his son lived with his ex-wife. The intersection of father and son's lives gradually decreased. According to the legal order of custody, biological children are usually the first-order guardians. However, Mr. Meng hopes to make more comprehensive and stable arrangements for the future based on his actual needs in his later years.
The family of old friends who have been with him for half his life and know everything about him have become Mr. Meng’s most trusted support in his later years. After decades of living together as neighbors and friends day and night, the old friends, the couple and their children voluntarily promised to take on the guardianship responsibilities of personal care, medical decisions, and living arrangements for Mr. Meng when he was unable to make independent decisions in the future.
In the eyes of most people, after decades of close friendship and familiarity with each other, this kind of trust is stable and practical. However, from the professional perspective of notarization and review, even the deepest friendship requires a rigorous system to ensure the bottom line. During the notarization process, the staff carefully sorted out the hidden practical risks: the old friend and his wife are old, and there may be a possibility that their caregiving ability will decline in the future, and whether the children in the family can successfully take over the guardianship responsibilities. When a family performs duties together, how to clearly define the boundaries of rights and responsibilities for personal care, medical decision-making, and property management.
Li Chenyang, Notary of Shanghai Putuo Notary Office: Summarizing from various cases, I think this credibility is very high. The biggest advantage of this system is that power is always in the hands of the individual. When you feel that the foundation of trust is gone, or that trust suddenly disappears after the notarization is completed, you can dissolve it.
In order to ensure that both parties understand the significance of signing the notarized guardianship agreement, a "cooling-off period" is also set aside for both parties. The staff worked with Mr. Meng and his family to clarify the custody rights and responsibilities of each party one by one. At the same time, they added special supervision clauses to the custody agreement to build a strong risk buffer for this sincere friendship.
After multiple rounds of detailed verification, it was confirmed that Mr. Meng’s consciousness was clear and his will was completely independent and true. The old friend’s family reached a unified consensus on the rights, responsibilities and performance of the guardianship, and the notarization of the intended guardianship was finally completed smoothly. With a standardized legal agreement, the elderly's entrustment in their old age is no longer just based on favors, but also has a system to ensure the bottom line.
Elderly people can choose social organizations
Perform guardianship duties
For the elderly group who live alone or have children who are not around and there is a "custody vacuum", voluntary guardianship transforms the legal arrangement based on kinship relationships into a means of protection that can be actively controlled and arranged in advance.
Zhang Shanyuan, who is over 70 years old, lives in Beijing. After retirement, traveling and seeing the scenery has been his hobby for many years. The old man has never been married, and on his way to travel alone, a hidden worry always lingers in his mind: if he is alone and has an accident or becomes mentally disabled, who will help him make medical decisions and handle personal affairs. The lack of close relatives he could trust became his biggest concern.
For this peace of mind, the elderly Zhang Shanyuan signed a guardianship agreement with the Beijing Luwei Silver Age Research and Service Center. The guardian Zhang Shanyuan chose was a social organization. According to Article 33 of the Civil Code, an adult with full capacity for civil conduct may consult in advance with his close relatives and other individuals or organizations willing to serve as guardians to determine his guardian in writing. When he or she loses or partially loses capacity for civil conduct, the guardian shall perform guardianship duties.
Zhang Shanyuan: I feel that I am safe. With this, I am guaranteed.
This voluntary custody agreement has clear time boundaries. Signing a contract does not mean that guardianship takes effect immediately. As long as the elderly Zhang Shanyuan is conscious and able to make decisions on his own, he must abide by his own wishes, and the decision-making power is still firmly in the hands of the elderly himself.
The role of social organizations as guardianship service agencies is more like a trustworthy helper for the elderly, obeying the elderly's arrangements and assisting in various matters. Only after legal procedures are passed and the court determines that the elderly person has lost or partially lost his capacity for civil conduct, will the voluntary guardianship agreement be officially launched.
As a guardianship service agency, the division of powers and responsibilities of social organizations is strict and clear: the guardian in the legal sense is the social organization itself, not a certain staff member. Although specific matters are implemented and handled by the staff of the guardianship service agency, all guardianship responsibilities and legal obligations are borne by this social organization.
Zhao Yuefan, deputy secretary-general of the China Association of Social Welfare and Elderly Care Services and director of the Beijing Luwei Silver Aging Research and Service Center: Our personnel transfer will have certain advantages over a single natural person. For example, in emergencies, staff can be dynamically coordinated. Two, three, or even four to five people can respond to emergencies involving a family or an elderly person.
Since signing this voluntary guardianship agreement, every time Zhang Shanyuan travels and arrives at a destination, he will take the initiative to report his location and current situation to the contracted guardianship organization. This is not a constraint, but a two-way peace of mind. The elderly know that there is an "organized family member" in the distance who knows where they are. If there is an emergency on the way, someone will be able to respond in time and handle it thoroughly. The organization also understands the elderly's travel dynamics in real time and makes emergency plans. The agreement did not hinder the old man's longing for the distant future, but instead added a layer of security to his journey.
Choose a social organization as the guardian. The guardian in the legal sense is the institution itself, not a certain staff member. The movement of personnel does not affect the responsible entities, and the organization can dynamically coordinate multiple people to respond to emergencies.
Willed Guardianship Facing
Cognition, resources, implementation, and supervision problems
As a heart-warming system that protects the rights and interests of the elderly in their later years, guardianship breaks the shackles of blood ties and provides support for elderly people who live alone, are alienated from family, and have no one to rely on. However, in the process of its implementation and popularization, this people's livelihood system still faces four major practical bottlenecks: awareness, resources, implementation, and supervision. It urgently needs to be optimized and improved so that legal goodwill can truly take root.
Cognitive Dilemma: Most elderly people “have never heard of it”
“I have never heard of the term voluntary guardianship.” This is a common reaction of many elderly people during interviews. Experts analyze that due to the influence of traditional concepts, most elderly people think more about property inheritance and have little thought about guardianship arrangements after dementia and disability. Coupled with insufficient publicity, the public's "cognition and trust in this system is relatively limited."
A deeper misunderstanding is that many elderly people equate voluntary guardianship with "transfer of property" and worry that signing an agreement means handing over their house and savings. In fact, the issue of voluntary guardianship is "who will make decisions for you" rather than "who will own the property".
Resource constraint: Qualified guardians are hard to find
“Don’t know who to entrust to” is the most common pain point in practical operations. During the interview, the reporter found that some elderly people living alone feel that "there is no suitable person to appoint", while elderly people with children are worried that "if they designate outsiders, their children will make trouble."
Traditional guardianship of relatives and friends has many concerns and responsibilities, and most natural persons are unwilling to undertake it. However, the number of social organizations and professional guardians who can perform their duties professionally is scarce and unevenly distributed. Experts said that my country’s voluntary guardianship system “has a relatively single execution subject” and it is urgent to activate social forces to participate and form a diversified supply pattern of “government leadership and social coordination”.
Difficulties in implementation: “Notarization is valid, but service is useless”
Forensic appraisal and behavioral capacity determination take a long time, which may affect the timely intervention of the elderly's voluntary guardianship during the "critical window period". A more common problem is that hospitals, banks, and nursing homes have varying degrees of recognition of notarized documents of intended guardianship, leading to the embarrassment of "effective notarization but useless service."
Today, this problem is being solved. Beibei District of Chongqing has created the country's first government information collection platform for guardianship decisions, which fundamentally solves the trust pain points of "agreement is easy to sign but difficult to implement" and "hospitals do not recognize and banks ignore".
The dilemma of supervision: Who will protect the rights of the elderly after they become disabled?
After the voluntary guardianship agreement comes into effect, the elderly often lose the ability to protect their rights independently. If a guardian neglects care, improperly performs his duties, or even disposes of property in violation of regulations, who will find out and who will hold him accountable? Experts pointed out that the current statutory supervision mechanism is overall lacking, and a closed-loop system of prior review, in-process supervision, and post-event accountability has not yet been established.
Nowadays, problem-solving ideas are emerging from all over the world. Shanghai Putuo Notary Office has created a "three separations of property" model: small daily expenses are independently controlled by the ward, medical deposits are specially managed by the guardianship organization, large amounts of funds are deposited and supervised by notarization, and expenditures need to be reviewed by the notary agency. Guardians are required to submit duty performance reports to the notary agency every quarter, and the notary agency submits comprehensive supervision reports to the court every year, forming a "judicial + notarization" dual-track supervision closed loop.
(CCTV reporters Shuai Junquan, Xu Hu and Guo Zhen)
