Analysis of Voluntary Guardianship of Civil Code Based on Legal Dogmatics

The Civil Code needs to be clarified including the nature of the voluntary guardianship agreement, the applicable relationship to legal guardianship, the scope of negotiation content, the responsibilities of the guardian, and the relationship between capacity to act and the establishment & effectiveness of the agreement. The voluntary guardianship originates from lasting power of attorney in comparative law, aimed to guarantee the autonomy. It is a conditional entrustment agreement, which takes priority over legal guardianship, and the entrusted matters are fully autonomous by the parties. The duties of the Guardian are to perform entrusted affairs, perform agency duties and prohibit abuse of power. Any person that has not been declared to be deprived of capacity may enter into a voluntary guardianship agreement. “Loss of partial or total capacity to act” should be interpreted as arbitrary norms, and the parties can negotiate on the elements for effectiveness.