공공후견 및 의사결정지원 촉진을 위한 입법과제

The new adult guardianship system, which took effect in 2013 in Korea, made the protection types and protection measures flexible for self-determination respect. Therefore, the new system was expected to be widely used in Korea. However, as the new system has been executed eight years old, the number of uses remains much lower than expected. In the meantime, public guardianship projects in each type of disability has been carried out to advocate the rights and interests and to support decision-making of the persons with impaired decision-making abilities. The public guardianship projects are in response to the development of socialization of guardianship following the decline of family function to protect the vulnerable person. They are providing indispensable social services in the human rights protection and social security delivery system for the persons with impaired decision-making abilities. However, there are such many challenges that are finding the need for guardianship of persons with impaired decision-making abilities who are isolated in communities and families, establishing a systematic support system linked with independently living and deinstitutionalization policies, dissemination and supporting of alternatives of adult guardianship such as adult guardianship contract, trust agreement, power of attorney for daily living support, advance directive for medical care. Furthermore, the Korea’s adult guardianship system faces significant challenges in the implementation of the United Nations Convention on the Rights of Persons with Disabilities. The United Nations Commission on the Rights of Persons with Disabilities criticized for maintaining a capacity limitation and substitute decision-making system in the concluding observations about Korea’s first national report in 2014. It also called for the transition to the supported decision-making system to enjoyment of legal capacity and to support its exercise. Fundamental reform of adult guardianship is required in light of international request regarding the supported decision-making of the persons with impaired decision-making abilities. First of all, measures should be sought to implement supported decision-making within the framework of the current adult guardianship system. At the same time as the establishment of a new public guardianship delivery system, this paper proposes to stipulate supported decision-making principles. It imposes a decision-making support obligation on public guardians prior to the exercise of legal representatives.