Daisy Cheung on Bringing the Adult Guardianship Regime in Line with the UNCRPD: The Chinese Experience (International Journal of Law, Policy and the Family)

"Bringing the Adult Guardianship Regime in Line with the UNCRPD: The Chinese Experience"

Daisy Cheung

International Journal of Law, Policy and the Family, Volume 35, Issue 1, 2021, ebab016, https://doi.org/10.1093/lawfam/ebab016

Published on 9 July 2021

Abstract: This article examines the Chinese experience with adult guardianship, focusing in particular on the regimes in Hong Kong and China. As jurisdictions in which the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’) applies, a key question is whether the adult guardianship regimes in these jurisdictions can be considered compliant with the principles of the UNCRPD, specifically those in Article 12. The adult guardianship regimes in both jurisdictions are in essence substitute decision-making regimes and are therefore not consistent with the interpretation of Article 12 by the Committee on the Rights of Persons with Disabilities, or what is described as the ‘strong interpretation’ in this article. The question remains, however, as to whether they might be nonetheless considered compliant with what is described in this article as the ‘weak interpretation’. This article explores supported decision-making, the concept of capacity and the existence and sufficiency of safeguards in each of the two regimes, concluding that neither regime can be considered compliant even using the weak interpretation of Article 12. Reflections on the way forward are discussed.

Rebecca Lee on the Adult Guardianship Dilemma in Hong Kong (Trusts & Trustees)

"The adult guardianship dilemma in Hong Kong"

Rebecca Lee

Trusts & Trustees
Published on 12 November 2019

Abstract: Today, there is worldwide consensus that ageing has become an issue of global concern. The frail elderly, together with other vulnerable sections of the community, may turn to adult guardianship, a mechanism for planning for and the protection of individuals with cognitive impairment. There is, however, an inherent tension at the heart of the legal institution of adult guardianship: although it protects individuals with cognitive impairment from potential abuse and exploitation, that protection is often provided by subjecting individuals to the plenary authority of their guardians. Against this backdrop, this article critically examines the struggle with the tension within the adult guardianship regime in Hong Kong and, drawing on reforms in major jurisdictions with long-standing experience of guardianship experimentation, explores the features of a guardianship system that tackles this dilemma.

Rebecca Lee on Guardianship of the Elderly in China

"Guardianship of the Elderly with Diminished Capacity: The Chinese Challenge"

Rebecca Lee
International Journal of Law, Policy and the Family
11 February 2015 (Advance Access)

Abstract: China’s elderly, traditionally revered, are now a forgotten population amid the nation’s rapid economic development. Stories of caregiver neglect, financial exploitation, physical and psychological abuse and neglect are not uncommon. The country’s one-child policy, implemented in the 1970s, has drastically changed its demography and traditional family structure. Responding to the ageing challenge has become an imminent task for China. This article examines critically the adult guardianship laws in China, which were modernised in 2013 as part of the reforms on elder law. First, it seeks to show that Confucian values are rooted in guardianship provisions in China. However, the deficiencies of the existing law to respond to the ageing challenge are also apparent as a consequence. It then goes on to discuss how, against a background of diminishing significance of the Confucian ethic of responsibility in China, recent reforms have attempted to preserve and enrich the Confucian tradition. Ultimately, the challenge facing China is not merely one of devising an adult guardianship system to protect the elderly, but also lies in her attempt to reinvigorate Confucianism with modern relevance.