Zhou Yanfang, a deputy to the National People’s Congress and director of the China Pacific Insurance Strategic Research Center (ESG Office), initially paid attention to the discretionary guardianship system. It was the care needs raised by some older families with mental disabilities when the insurance industry was developing insurance trust business.
"Trust companies usually ask about the family situation of their clients. For example, parents of some autistic children are worried that after they become mentally disabled or pass away, their adult children without full capacity for civil conduct will have no one to take care of them. The guardianship system may be the only way out for these families at this stage." Zhou Yanfang told China Business News.
Specifically, this "way out" is to solve the problem of social guardianship and property management of children with autism or other mental disabilities after the death of their parents, as well as the use of property for long-term care, medical treatment and other needs scenarios, through the method of "willed guardianship + will-specified guardianship".
Faced with the intertwined issues of aging and disability, during this year's National Two Sessions, many representatives and committee members focused their attention on the discretionary guardianship system. “Decided guardianship is highly dependent on notary agencies, but nearly 45% of notary agencies across the country have not handled this business”, “social guardianship is ‘difficult to find and do’”, and “prominent cross-department information barriers” have become their concerns.
In addition, in response to the "support gap" problem of family care for special groups in adulthood, some representatives also called for increasing inclusive financial support, promoting special needs trusts, and expanding the coverage of long-term care insurance.
Three shortcomings on the supply side: guardianship, notarization and care
Can a suitable guardian be found? After the guardianship agreement comes into effect, who will supervise the guardian to protect the legitimate rights and interests of the ward?
According to industry insiders, these are the two major difficulties in implementing the discretionary guardianship system. Behind these two major problems, they both point to shortcomings in supply-side capacity building and the trust relationship between supply and demand that still needs to be established.
Voluntary guardianship is an arrangement made in advance by adults with full civil capacity for their future guardianship affairs according to their own wishes. When the adult loses or partially loses his or her capacity for civil conduct, a pre-selected guardian (including natural persons and organizations) will perform guardianship duties.
As a new system, voluntary guardianship first appeared in the "Law of the People's Republic of China on the Protection of the Rights and Interests of the Elderly" revised in 2012. The new "General Principles of the Civil Law" implemented in 2017 expanded the scope of application of the guardianship system from the elderly to all adults with full capacity for civil conduct.
"Families for the elderly and disabled" are a special and more complex type of subjects with voluntary guardianship needs that are applicable to the law. These families are faced with two generations of guardianship problems – elderly parents are worried that their children will not be able to provide for them when they are old, and they are also worried that after their death, the lives of their autistic or mentally disabled children will not be guaranteed. Once they have large medical needs, no one will be able to dispose of their property in a timely manner.
"About 40% of families with intellectual disabilities are unable to find relatives to assume guardianship responsibilities, and social guardianship faces the dilemma of 'difficult to find and difficult to do' due to high risks." Feng Fan, a representative of the National People's Congress and a lawyer at Guoco Law Firm (Nanchang), believes that currently 20 million families of individuals with intellectual and mental disabilities face multiple "double elder" care dilemmas.
Cai Sheng, chairman of Guangzhou Liwan District Harmonious Society Guardianship Service Center, also said in an interview with China Business News that the biggest obstacle to the implementation of the guardianship system is the lack of suitable and reliable guardians. "Especially when we are dealing with some elderly clients who are around 70 years old, they may not have much time left to find a guardian, and their relatives of the same generation may not be able to assume guardianship responsibilities."
Shanghai is a city where there are many demands and implementation practices for the guardianship system, and local laws and regulations are relatively complete. Before the two sessions this year, Zhou Yanfang conducted a survey on the implementation of Shanghai's voluntary guardianship system. During this period, Zhou Yanfang discovered that even in Shanghai, there was a serious shortage of local professional social guardianship organizations. “In Shanghai, there are only three social organizations engaged in voluntary guardianship.”
There are also opinions in the industry that at present, social guardianship service organizations do not have strong credibility. Since there are very few social guardianship service organizations approved by the civil affairs department, most of which are private, non-enterprise units. At the same time, the attitude of some places to support the socialization of guardianship is still unclear, and there are no specific policies to encourage and guide. Both supply and demand parties have a wait-and-see attitude.
But for families with autism or mental illness, the situation may be different. Some people in the autism field interviewed said that in recent years, blood guardianship has been difficult to find, and the unwillingness of relatives to take over guardianship responsibilities has increased. Related families are even more willing to make "social guardianship" the first choice.
"Reliable social guardianship agencies" are difficult to find, and the notarial force that supervises the implementation of guardianship responsibilities also has certain shortcomings.
Zhou Yanfang observed that in foreign practice, notarial intervention is not necessarily required for intended guardianship. However, under China's national conditions, guardianship is highly dependent on notary institutions. However, due to complex notarization procedures and high liability risks, nearly 45% of notary institutions across the country have not handled voluntary guardianship services, and service resources are mainly concentrated in a few municipalities and provincial capitals.
In addition to notary agencies, the Civil Code also gives relevant responsibilities to neighborhood (village) committees, which can, to a certain extent, make up for the insufficient number and capacity of notary agencies in some areas. However, during Zhou Yanfang’s research in Shanghai, she found that the willingness of neighborhood (village) committees to play the role of “supervisors” in the voluntary guardianship system is not sufficient.
"First, there is a lack of professional capabilities; second, it requires a lot of time and energy; third, once disputes and public opinion occur, the village committee cannot bear responsibility." Zhou Yanfang believes that due to unclear division of powers and responsibilities, funding guarantees, and operating specifications, under ideal conditions, it is difficult for the village committee to effectively perform its functions of witnessing, supervising, and providing information in the guardianship system.
For families with autism or mental disabilities, even if they find a guardian and have a notary agency or neighborhood (village) committee as the guardian supervisor, they still face a large supply gap in fulfilling their intended guardianship needs – it is difficult to find professional institutions to provide long-term care services.
Sources from autism-related charities told reporters that at present, even in first-tier cities, there are few service institutions or elderly care institutions that can accommodate the care needs of elderly parents and disabled children at the same time. The "respite services" provided by some communities at the grassroots level cannot meet the round-the-clock needs of this group of people who require the intervention of professional medical care providers.
How to protect rights and interests during medical treatment and property disposal?
Property management is the most likely issue to cause disputes when conferring guardianship.
Behind this problem is not only the fact that the intended guardianship recipients are usually disabled and demented people, and the trustee's power boundaries are infinitely enlarged, which leads to risks such as property misappropriation and lack of care, but also because there is another completely opposite situation – the trustee may not be able to dispose of the property in a timely manner.
Regarding the former, Shanghai has piloted a "three separations of property" regulatory scheme to explore the balance between ensuring financial security and enhancing the ward's right to independent life.
A case in Jiading District, Shanghai, was mentioned in the special program "I Suggest" for the Two Sessions broadcast on the CCTV Social and Legal Channel on March 6: 44-year-old Si Lin (pseudonym) suffers from mental illness. His current guardian is a social guardianship institution in Shanghai, and this institution was chosen for him by his mother, Ms. Sun, during her lifetime. In February last year, Ms. Sun died of illness. The guardianship organization applied to the Shanghai Jiading District People's Court to change Si Lin's custody. In the end, the local government implemented the aforementioned "three-separation" plan regarding Si Lin's property management: small-amount properties were kept by Si Lin himself; fixed medical funds were kept by the guardianship organization; and large-amount funds were supervised by the notary office. If a guardian needs to use a large amount of funds, he or she must apply to the notary office. After approval, the notary office will allocate the funds directly to the corresponding institution.
Regarding the latter, Zhou Yanfang mentioned that this is partly because the current unified authoritative filing platform for guardianship agreements at the national or provincial levels has not yet been established. Information among notary offices, civil affairs, courts, medical institutions, neighborhood (village) committees, and financial institutions are not connected to each other, which has created "information islands."
"On the one hand, it makes it difficult for guardians to self-certify, and they cannot quickly prove their identity in emergency treatment, property disposal and other scenarios, which affects the protection of rights and interests; on the other hand, it can easily lead to guardianship conflicts, and courts or grassroots organizations may appoint separate guardians without knowing it, leading to conflicts between voluntary guardianship and legal guardianship, weakening the authority of the system." Zhou Yanfang said.
In this regard, Zhou Yanfang suggested that the civil affairs department should take the lead and cooperate with judicial administration, health, financial supervision, courts and other units to build a nationwide or province-wide unified registration and sharing platform for voluntary guardianship information to achieve unified collection and dynamic management of full-cycle information such as the conclusion, change, and cancellation of guardianship agreements, identification of civil capacity, and initiation and termination of guardianship.
The top-level design also needs to be improved urgently. Sun Jie, a member of the National Committee of the Chinese People's Political Consultative Conference and School of Insurance at the University of International Business and Economics, told reporters that she brought a "proposal on establishing a multi-level protection system for the guardianship plight of people living alone" at this year's National Two Sessions. Sun Jie suggested that relevant laws and policy systems should be improved to lower the implementation threshold of voluntary guardianship.
She proposed in the proposal that at the legal level, the legislative body and the Supreme People's Court should take the lead, through supplementary legislation or the issuance of special judicial interpretations, to clarify the legal validity and enforcement boundaries of guardianship or entrustment agreements in key areas such as medical care, financial payments, and government affairs processing, focusing on resolving practical stuck points such as identity recognition, medical signature rights, and property disposal rights, to eliminate compliance concerns of important service institutions such as hospitals and banks from the legal level, and ensure that guardianship or entrustment agreements can be "signed" and "worked."
In addition, Sun Jie suggested that the professional advantages of insurance companies and other commercial entities in long-term funding, risk management, and medical and elderly care industry layout should be given full play, allowing them to serve as intended guardians or provide customized services through entrustment, focusing on meeting the complex needs of people living alone in medical decision-making, disability and dementia care, property management, and posthumous affairs processing, etc., and filling the blind spots in the supply of inclusive public welfare services. Including building a national, cross-field professional service system.
In recent years, Beijing, Shanghai and other places have opened up real estate trust property registration channels, allowing non-financial assets such as real estate and equity to be included in special needs trusts to expand the scope of property used to protect people with special needs. In this context, Feng Fan believes that within the framework of the Trust Law, the reform of the national real estate trust registration system should be promoted, a unified trust registration information inquiry platform should be established, and the independence of trust property should be clarified. At the same time, special preferential tax policies have been introduced to provide tax exemptions or deferrals for real estate placement trusts, transforming trust services from "exclusive for high net worth" to universally accessible, and solving the problem of property management for families with special needs.
In order to allow more care resources to accurately reach special groups, Feng Fan also suggested expanding the coverage of long-term care insurance, effectively reducing the cost of care for families with special needs, building a multi-level payment system of "government subsidies + long-term care insurance + family payment", implementing differentiated subsidies based on differences in disability levels and care needs, and guiding social forces to participate in the provision of care services for disabled people.
