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■Table of Contents
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Adult Guardianship in Japan
◇
WHO
◇
Academic Achievements
◇
Events etc.
◇
Theme Related Links
◇
Newspaper Articles
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Adult Guardianship in Japan
What is adult guardianship in Japan?
It is a system that provides people who have insufficient decision-making capacity as a result of factors such as dementia, intellectual disability, and mental illness with a way of life that respects their will by designating an assistance provider (“guardian of an adult”) to protect their property and rights under the law.
Types
1. Voluntary guardianship
In preparation for a future in which he or she will lack sufficient decision-making capacity, while the person in question still possess this capacity he or she chooses an agent (voluntary guardian) and enters into a contract in the form of a notarial deed prepared by a notary public (voluntary guardian contract) that gives this agent authority of representation concerning the management of the person in question’s daily life, medical treatment/nursing care, and property.
There are three forms of voluntary guardianship contract that can be chosen according to the person in question’s living circumstances and health condition.
① Immediate type: Directly after the contract is signed application for the appointment of a voluntary guardianship supervisor is made to the family court (used when the person in question has the voluntary capacity required to enter into the voluntary guardianship contract).
② Future type: Only the voluntary guardianship contract is made (the person in question will be supported through the voluntary guardianship contract after his or her decision-making ability declines).
③ Transition type: A voluntary guardianship contract is made, and at the same time a contract of mandate assigning authority of representation concerning medical treatment/nursing care and management of property is also entered into (the person in question is supported through the contract of mandate before the voluntary guardianship contract comes into effect, and afterwards by this contract).
Remuneration of voluntary guardians
When the voluntary guardianship contract is entered into, whether or not remuneration will be paid and the amount and manner of this payment are discussed and decided by the person in question and the voluntary guardian.
Expenses incurred by guardians of adults in carrying out their duties (transportation costs, communication costs, etc.) can be paid out of the person in question’s property.
Required documents
① Seal registration certificate, copy or abridged copy of the family register, and
certificate of residence of the person in question
② Seal registration certificate and certificate of residence of the voluntary guardian
③ Other documents (applicable certificates of registration of land/buildings if there is
specific property management, etc.)
Costs
① Basic processing fee for the creation of a notarial deed (11,000 yen)
② Registration of commission processing fee (1,400 yen)
③ Stamp fee for payment to the legal affairs bureau (2,600 yen)
④ Other stamp fees for original/certified copies issued to the person in question, the voluntary guardian, and the legal affairs bureau.
⑤ Registered commission documents postage fee
* If contracts of mandate for the management of property or posthumous affairs are made at the same time, the processing fee in ① and document fees are required.
* The costs listed above may change.
Validity
・ When the person in question’s decision-making capacity has declined, a voluntary guardianship contract becomes valid once the family court has assigned a voluntary guardianship supervisor.
This process can be petitioned for by various individuals including the person in question, his or her spouse, the voluntary guardian, and relatives within the fourth degree of relationship.
・ When the need to petition for a voluntary guardianship supervisor arises, a visit is made to the family court.
* More detailed information can be obtained by requesting free counseling at a notary public’s office.
2. Legal guardianship (after the person in question’s decision-making capacity has become inadequate)
A system that supports people whose decision-making capacity is inadequate as a result of factors such as dementia, intellectual disability or mental illness. In order to make use of it, petition for judgment must be made to the family court with jurisdiction over the person in question’s place of residence.
Depending on the person in question’s decision-making capacity, either "guardianship", "curatorship", or "assistance" can be used. The family court judges which type the person in question’s decision-making capacity belongs to based on the person in question’s medical certificate, assessment and so on.
3 types of legal guardianship
| - |
Guardianship | Curatorship | Assistance |
| Degree of decision making capacity |
None | Markedly inadequate | Inadequate |
| Who can petition |
The person him or herself, his or her spouse, a relative within the fourth degree of relationship (*1), a public prosecutor, a mayor, etc. | The person him or herself, his or her spouse, a relative within the fourth degree of relationship (*1), a public prosecutor, a mayor, etc. | The person him or herself, his or her spouse, a relative within the fourth degree of relationship (*1), a public prosecutor, a mayor, etc. |
Authority given to guardians of adults etc. | All legal acts concerning administration of property (scope of representative authority)
Legal acts carried out by the person in question (Scope of consent authority/voidable authority) | Legal acts given by the scope of the petition
*Authority is given to assistance providers/curators on the basis of the person in question’s consent (scope of representative authority)
Acts stipulated in paragraph 1 of Article 13 of the Civil Code or legal acts given by the scope of the petition (scope of consent authority/voidable authority) |
Legal acts given by the scope of the petition
*Authority is given to assistance providers/curators on the basis of the person in question’s consent (scope of representative authority)
Acts stipulated in paragraph 1 of Article 13 of the Civil Code or legal acts given by the scope of the petition
*Authority is given to assistance providers on the basis of the person in question’s consent (scope of consent authority/voidable authority) |
Restriction of qualifications or other forms of standing when the system is utilized | Deletion of seal registration
Loss of professional qualifications such as medical doctor or licensed accountant, and of positions such as corporate executive or civil servant | Loss of professional qualifications such as medical doctor or licensed accountant, and of positions such as corporate executive or civil servant | - |
* 1 Relatives within the fourth degree of relationship are mainly the following:
・ Parents, grandparents, children, grandchildren, great-grandchildren
・ Uncles, aunts, cousins
・ Brothers, sisters, nephews, nieces
・ Spouse’s parents, children, and siblings
Activities stipulated in paragraph 1 of Article 13 of the Civil Code
① Receive or use any principal
② Borrow any money or guarantee any obligation
③ Perform any act with the purpose of obtaining or relinquishing any right regarding real estate or other valuable property
④ Take any procedural action
⑤ Make a gift, make any settlement, or agree to arbitrate
⑥ Accept or renounce any inheritance, or partition any estate
⑦ Refuse an offer of a gift, renounce any bequest, accept the offer of gift with burden, or accept any bequest with burden
⑧ Effect any new construction, renovation, expansion, or major repairs
⑨ Make any lease agreement with a term which exceeds the period set forth in Article 602
Remuneration for guardians of adults
The family court, based on a petition for remuneration from the guardian of an adult, determines the amount of remuneration taking into account factors such as the content of the guardian’s duties and the assets of the person in question. The guardian of the adult then receives remuneration from the assets of the person in question.
Regarding expenses (transportation costs, communication costs, etc.) incurred by the guardian of an adult in order to carry out his or her duties as guardian, the necessary funds can be paid out of the person in question’s assets.
Required documents for petition
① Documents that are always required:
・ Petition form
・ Copy of the family register, certificate of residence, proof that the guardian of an adult is not registered for the person in question
・ Diagram of family relationships
・ Person in question’s medical certificate, inquiry for primary doctor
・ Documents describing the medical condition of the person in question (passbook for people with disabilities, copy of a nursing care insurance certificate)
・ Documents describing real estate, savings, investment trusts, stocks, life insurance, casualty insurance, debts, etc. possessed by the person in question
・ Documents showing the person in question's income and expenditures
② Documents required when there is a candidate to be guardian of an adult:
・ Candidate’s certificate of residence
・ Written inquiry concerning the candidate
③ Document required when there is an inheritance to which the person in question is heir:
・ Catalogue of inheritance
*There may be changes concerning the documents listed above.
Costs
① Petition processing fee: 800 yen (when the court is petitioned for both representative authority and consent authority at the same time in the case of a curator/assistance type petition, 800 yen is required for each petition)
② Postage stamps (1,000 yen (1), 82 yen (20), 52 yen (10), 10 yen (10), 2 yen (5)) totaling 3,270 yen
③ Revenue stamp for guardianship registration: 2,600 yen
④ Assessment fee (only in cases where an assessment is conducted): 50,000 yen - 100,000 yen
*There may be changes concerning the costs listed above
Regarding assessment
In order to medically establish the degree of decision-making capacity of the person in question, an assessment may be carried out by a doctor. In that case an assessment fee is required.
The amount of the assessment fee differs from case to case.
In cases where an assessment is necessary, the assessment fee may be paid in advance at the time of petition.
Necessary costs for petition, including assessment fee, is generally paid by a petitioner.
How the process normally goes
Family court
[Process guidance]
・Explanation of the process of beginning a guardianship and the documents required for a petition (its explanation DVD is also available).
↓
[Petition]
・Petitions require documents such as the petition form and fees such as petition processing fee.
・There are some family courts that let you make a reservation for the date and time of your visit over the phone.
↓
[Hearings, examinations, assessments, etc.]
・After the petition, an officer of the court may hear the facts of the case from the petitioner, guardian candidate, and person in question, and offer an opinion concerning the candidate to the person in question’s family. If necessary, a judge may also inquire into the circumstances (hold a hearing).
・An assessment may be carried out regarding the decision-making capacity of the person in question.
↓
[Judgment]
・When family court makes a judgment to begin guardianship, at the same time it also appoints the person it finds most suitable to serve as guardian.
・If the person in question, his or her spouse, or a family member within the fourth degree of relationship (excluding the petitioner) has an objection to the judgment, within the two weeks after it is issued he or she can file an objection petition (immediate appeal).
What sort of person is chosen to be the guardian of an adult?
・The family court chooses the person it deems most suitable. According to factors such as the nature of the support the person in question requires, there are cases in which someone other than the candidate put forward at the time of the petition is chosen and asked to be the guardian (a professional such as a lawyer, judicial scrivener, social worker, or licensed accountant, an organization involved in the law or welfare, etc.). In cases where the person in question’s assets exceed a certain amount, in order to ensure the proper management of these assets it is normal for a professional to be chosen as guardian and a legal guardianship support trust (*1) to be utilized.
・There are several established factors that prevent an individual from being selected as a guardian, including their having sued the person in question, having gone bankrupt, or having previously been forced to stop being the guardian of an adult.
* When there has been a request from the guardian of an adult, there are cases in which remuneration is paid out of the person in question’s assets according to the determination of the family court.
*1 An arrangement in which, out of the person in question’s assets, sufficient funds to cover daily expenditures are managed by the guardian as deposits and savings, and funds not normally used are kept in trust in institutions such as trust banks.
When someone other than a candidate for the guardian of an adult is chosen, can an objection petition be filed?
No objection petition can be filed regarding who the family court chooses to be the guardian of an adult.
Can a petition be cancelled after it has been made?
Once you have made a petition, you cannot cancel it without obtaining permission from the family court.
Regarding the work of the guardian of an adult
Role
・The role of the guardian of an adult is to protect and support the person in question by engaging in activities such as managing his or her assets or entering into necessary contracts on his or her behalf, while respecting his or her will and taking into consideration his or her physical and mental state and living circumstances.
・The work of the guardian of an adult is limited to legal activities such as managing assets and making contracts, and generally speaking does not include things like helping them eat or directly providing nursing care.
Concrete duties
① Create a catalogue of assets.
The guardian of an adult should submit a catalogue of assets to the family court within one month of being appointed
② Make a plan for the future
While respecting the views of the person in question, the guardian should come up with a lifestyle and care system suited to him or her, and lay out a plan for the future and income/expenditure budget regarding contracts for things like asset management, nursing care, and hospitalization.
③ Day to day management of the person in question’s assets
The guardian manages things like the person in question’s savings account passbook, and leave a record of income and expenditures.
④ Make contracts on behalf of the person in question when necessary
The guardian signs contracts for the use of nursing care services, admittance to a facility, etc. on behalf of the person in question.
⑤ Report the status of his or her work to the family court
The guardian of an adult must give reports on work carried out as a guardian to the family court, and receive guidance or instruction when necessary (guardianship supervision).
*The guardian of an adult has a duty to appropriately maintain and manage the assets of the person in question for his or her benefit. Curators and assistance providers have the same obligation within the scope of the authority they are given.
To this end, even in cases in which the person in question and the guardian of an adult are in a family relationship, it is important that the guardian maintain a thorough awareness of “taking care of and managing someone else’s money” while engaging in his or her work as a guardian.
In principle it is not acceptable for a guardian of an adult to manage the person in question’s assets in a risky or speculative manner, make use of them for his or her own benefit, give/loan them to relatives, etc.
It is not acceptable for the guardian of an adult to take remuneration from the person in question’s assets without permission from the family court.
When the guardian of an adult manages the assets of the person in question inappropriately, in addition to being dismissed as guardian, he or she may also be exposed to civil liability for damages or criminal liability for crimes such as embezzlement or misappropriation of entrusted assets.
Term of service
・Normally, the work of the guardian of an adult continues until the person in question regains their decision-making capacity (by recovering from illness, for example) or dies. It is not a role that ends when the aim that caused the petition to be made in the first place (receiving insurance payments, for example, or distributing an inheritance) has been accomplished.
・Resigning as the guardian of an adult requires permission from the family court, and this is only given in cases when appropriate reasons such as a health problem are present.
As the guardianship supervisor, the family court may dismiss the guardian of an adult when there are circumstances that make him or her unsuited to carrying out his or her duties as guardian.
(Sources (in Japanese): Information here is translated based on the following leaflets --The family court "Adult Guardianship: For Fostering Better Understand of it", and Kyoto City Adult Guardianship Support Center "Information about Adult Guardianship"）
■
WHO
◆KIRIHARA Naoyuki
◆
NAGASE Osamu
◆
TATEIWA Shin'ya
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Academic Achievements
By Our Members
◆
NAGASE Osamu March 2013 "Deprivation of voting rights ruled unconstitutional in Japan,"
IDA HUMAN RIGHTS PUBLICATION SERIES
http://www.internationaldisabilityalliance.org/sites/disalliance.e-presentaciones.net/files/public/files/Nagase%20Osamu_Inclusion%20Japan_Deprivation%20of%20voting%20rights%20ruled%20unconstitutional%20in%20Japan.pdf
◆KIRIHARA Naoyuki September 27, 2009 "Agenda of Disability Movements in Discussions concerning Legal Ability and Assisted Decision-making,"
The 6th Annual Convention of Japan Society of Disability Studies, Ritsumeikan University
[Abstract in Japanese]
◆Dohn Hoyle (2004) "Eliminating the Pervasivensee of Guardianship"(Translation into Japaneseby Naoyuki Kirihara in 2009)
◆Diane Coleman,Tom Nerneyg (2006) "Guardianship and the Disability Rights Movement"(Translation into Japanese by Naoyuki Kirihara in 2009
By Others
◆ARAI Makoto May 30, 2014 "Asian Guardianship Issues"
http://www.guardianship.org/IRL/Resources/Handouts/Comparative%20Perspectives%20-%20Asian%20Guardianship%20Issues.pdf
◆ARAI Makoto & HOMMA Akira 2005 "Guardianship for adults in Japan: Legal reforms and advances in practice,"
Australasian Journal on Ageing 24 Supplement: S19-24
http://onlinelibrary.wiley.com/doi/10.1111/j.1741-6612.2005.00094.x/pdf
◆ABE Takashi April 9, 2004 "Adult Guardianship and the Aging Society?
Enhancing Society’s Role to Ensure the Quality of Life"
http://www.nli-research.co.jp/english/socioeconomics/2004/li040409.pdf
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Events etc.
◆October 16, 2015
Seminars on Systems/Policies concerning Survival "Disability/Society" No.7 "Legislation for People with Mental Disorders and Agendas of Adult Guardianship", Suzaku Campus, Ritsumeikan University.
→
Event Report
■
Theme Related Links
◆Civil Code in Japan
http://www.japaneselawtranslation.go.jp/law/detail_main?re=&vm=&id=2057
◆Guardianship (Encyclopedia.com)
http://www.encyclopedia.com/topic/Guardianship.aspx
◆International Guardianship by Country /Japan
http://www.international-guardianship.com/pdf/GBC/GBC_Japan.pdf
◆Japanese Law and Government/Civil Law
https://en.wikibooks.org/wiki/Japanese_Law_and_Government/Civil_Law
◆Shiho-shoshi Profile (Japan Federation of Shiho-shoshi’s Associations)
http://www.shiho-shoshi.or.jp/html/global/english/01.html
◆The Japan Adult Guardianship Law Corporate Association (JAGA)
http://jaga.gr.jp/en/privacy_en/
■
Newspaper Articles
◆August 4, 2013 "Woman with Down syndrome wins rights case" (
The Japan Times)
http://www.japantimes.co.jp/news/2013/08/04/world/woman-with-down-syndrome-wins-rights-case/#.VrLe7TJunGg
◆July 17, 2013 "Wards win back their right to vote" (
The Japan Times)
http://www.japantimes.co.jp/news/2013/07/17/national/crime-legal/wards-win-back-their-right-to-vote/#.VrLdYjJunGg
◆March 28, 2013 "Appeal sparks outrage over voting rights curb" (
The Japan Times)
http://www.japantimes.co.jp/news/2013/03/28/national/crime-legal/appeal-sparks-outrage-over-voting-rights-curb/#.VrLedTJunGg
◆March 24, 2013 "Upholding the right to vote" (
The Japan Times)
http://www.japantimes.co.jp/opinion/2013/03/24/editorials/upholding-the-right-to-vote/#.VrLdqDJunGg
◆March 16, 2013 "Denying suffrage to wards said ‘excessive’" (
The Japan Times)
http://www.japantimes.co.jp/news/2013/03/16/national/denying-suffrage-to-wards-said-excessive/#.VrLc2zJunGg
◆March 14, 2013 "Adult ward should have right to vote: court" (
The Japan Times)
http://www.japantimes.co.jp/news/2013/03/14/national/crime-legal/adult-ward-should-have-right-to-vote-court/#.VrLcQzJunGg
UP: February 2, 2016 REV:February 4, 2016