Substantial respect on self-determination and Institutionalization of Supported Decision-Making

초록

Guardian’s duty to support decision making and respect ward’s will While the new adult guardianship in Korea does not state supported decision-making, the guardian ought to respect the decisions of the ward at all times and make priority efforts in supporting their ward to overcome the difficulties in making decisions. The guardian’s duty to support decision making should be legislated in Korean domestic law! The guardianship should make the substitution of decision-making only if the ward cannot make an autonomous decision even though all realistically possible methods have been utilized to support their ward. At this time, the intent of their ward on what he/she wants ought to be respected(KCC Art. 947). If the counterpart knows or may have known the guardian was exercising the right of legal representation against the will of the ward. It should be interpreted the ward can argue that the exercise of the right of legal representation by the guardian is not effective for the counterpart as well (abuse of the right of legal representation). If the Court decides the consent of the guardian must be obtained before the ward performs a certain legal act, the guardian can give consent to the legal act of the ward in order to make a clear expression that the legal act received supported decision-making by the guardian. If there was no consent by the guardian when engaging in a legal act with the ward, the counterpart must be prepared for the risk of the legal act to be revoked by the ward in the future.