Property Custody for the Elderly from the Perspective of Legal Regimes in the United States

• Main Authors: Nien-Leng Hsu, 徐念稜
• Other Authors: Sieh-Chuen Huang
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/cgt5cd

碩士 === 國立臺灣大學 === 法律學研究所 === 107 === With the improvement of medical and scientific technology, the average life expectancy of human beings has increased year by year. Taiwan has officially entered the "aged society" in 2018, and is expected to become a "hyper-aged society" in 2026. Therefore, the management of property for elderly people with incapacity has become an important issue. At present, legal custody is the only way for the protection for elderly people with incapacity. After the elderly has declared by the court, the guardian selected by the court will act as the person to handle all the affairs of the person, including the person’s property. However, in practice, the court often appoints the family member of the person as the guardian, and rarely asks for the person’s opinion when appointing the guardian but this practice does not respect the elderly’s decision, and the appointed guardian may not be familiar with and good at managing property affairs. Based on the respect of the right of the elderly’s decision, the Legislative Yuan of Taiwan proposed a draft of the voluntary custody in 2015; the Ministry of Justice also made a draft of the voluntary custody in 2016. It is hoped that the introduction of the voluntary custody will enable the elderly to arrange care and property management according to their own wishes and expectations when incapacity. On the other hand, the trust has the function of maintain one’s decision. In theory, when the elderly person delivers the property to the trust, the trust property will not be affected by the death or incapacity of the settlor. The trustee will continue to manage the trust property according to the purpose of the trust. Therefore, the trust is also a good tool for property management affairs for the elderly who is incapacity. This paper examines the US Durable Power of Attorney, which is an alternative to guardianship that is widely used by the public. The procedure is simple and inexpensive. The elderly person can make a Durable Power of Attorney with the agent before incapacity, appointing the agreement is effective immediately or when the elderly person is incapacitated, and let the agent act as the person himself to manage the person’s property. Furthermore, another alternative to guardianship is the Custodial Trust. The use of the trust system as an alternative to custody can extend the meaning of the senior settlor who wish to continue to manage the property after being incapacitated or dying in the future. That is, the elderly person retains the substantive control over the trust property before the incapacity, and when he is incapacitated, it will convert into a discretionary trust, and the trustee manages the trust property for the elderly person’s benefit. In the current status of Taiwan''s law, once the elderly is incapacity, they are only subject to legal custody or commencement of assistantship. The voluntary custody which will be introduced in the future is also premised on the commencement of guardianship. Looking at the adult guardianship system in the United States, if the elderly has pre-planned the alternatives to guardianship before they are incapacity, the legal guardianship procedure would not be open. Hence, it is more respectful to the self-determination of the elderly. In order to prevent the guardian from abusing the power, and effectively protect the person’s property, it is expected to adopt a combination of custody and trust. In addition, adult-related training courses for courts and general (whether legal or voluntary) guardians should be strengthened to enhance the ethical awareness of guardians by setting up educational courses. In the United States, whether it is a Durable Power of Attorney or a Custodial Trust, it has the function of circumventing legal custody. However, as the current status of Taiwan’s law, once the elderly becomes incapacity, in any case requires the involvement of public authority. Therefore, this study aims to analyze the strength of the public authority intervention in Taiwan''s voluntary custody system from the perspective of comparative law, by observing the US Durable Power of Attorney and Custodial Trust system, and to explore the future difficulties and challenges in Taiwan if we want to combine the guardianship system with the trust system.