Since dementia impairs the ability to make normal decisions, there is a system known as adult guardianship that helps support the decision-making of a person with dementia. This article explores Japan’s adult guardianship system.
There are two types of guardianships: one for when the symptoms of dementia are already present, and the other when a guardian is arranged the onset of dementia, also known as a voluntary guardianship.
Adult guardianship system for after the onset of dementia
The first type of guardianship system is for those who already exhibit the symptoms of dementia. If you have visible symptoms of dementia, you may not be allowed to enter into a contract or complete procedures at a bank. This is due to the risk to the procedures in question if the intention of the person with dementia cannot be properly ascertained.
Under these circumstances, to protect your rights, you need a guardian to assist you in making decisions or to act on your behalf. A guardian is appointed when you or a family member files a petition for the appointment of a guardian in the family court. The family court will decide who to appoint as the guardian. It is important to bear in mind that family member does not automatically become the guardian. In fact, in many cases, a legal professional such as a lawyer or judicial scrivener (a shihoshoshi) is appointed as the guardian.
A guardian manages property for the person, provides consultation, and advise about entering into contracts, or even entering into a contract on behalf of the person with dementia.
The guardian will prepare and maintain accounting records for all business transacted on behalf of the adult ward and will make a report to the family court once a year. The court will then determine the amount of the guardian's compensation based on the report, and the guardian will receive that amount from the adult ward’s assets.
The guardian’s remuneration is determined by the value of the adult ward’s assets and the complexity of the work done by the guardian; however, the amount to be paid must be payable within the scope of the adult ward’s assets.
Since both the appointment of the guardian and the determination of compensation are made by the family court, you and your family may feel uncomfortable about this.
Adult Guardianship System Where the Adult Guardian is Chosen before the Onset of Dementia (“Voluntary Guardianship”)
Next, we would like to briefly introduce the adult guardianship system where the adult guardian is chosen before the onset of dementia.
Before the onset of dementia, you can decide on a candidate for adult guardianship in advance and enter into a contract with that person to be your adult guardian. By doing so, you will have adult guardian that you trust and can decide in advance what the remuneration to the adult guardian will be. At this stage, the family court is not involved.
Even after the contract is signed, the guardian remains under obligation until the onset of dementia. Then, at the onset of dementia, the candidate for guardianship reports this to the family court and the candidate for guardianship becomes the official guardian. Separately from that, the family court appoint will appoint a different supervisory guardian to supervise the voluntary guardian chosen by the person with dementia. The purpose of a supervisory guardian is to ensure that the voluntary guardian does take advantage of the adult ward. Based on this procedure, the work of the voluntary guardian begins in accordance with the contract.
Under this system, the person you trust will be your guardian and will be granted the amount of compensation already agreed upon in the contract. However, the appointment of the supervisory guardian and his or her remuneration will be decided by the family court.
Of the two adult guardianship systems, I think that most foreign nationals may feel more comfortable with the latter (i.e., the voluntary guardianship system).
It is best to consider this option as soon as possible while your decision-making abilities are not yet impaired and enter into a contract accordingly.
Since guardianship is a legal procedure, you should seek the advice from a legal professional. Kobe Legal Partners has been involved in more than 160 guardianship cases and we have significant experience in acting as guardians for about 30 people at any given time.
Consultations are available online or in person. We look forward to hearing from you.