Modernising the Adult Guardianship Law for the 21st Century : What is the Role of Families, Civil Society and the State?

In order to truly modernise the adult guardianship law, we must break away from past practice, where the preservation of familial assets and the control of family members were paramount, and reject the idea of families as closed communities that are isolated from society as a whole. In a broader society, which integrates “family communities” into the greater family of society—a true “civil society”—willing people should be allowed and welcomed to give support to the vulnerable members of that society. One example of such a society would be the one pursued under the Mental Capacity Act 2005 in the UK. Under the framework of this Act, a person with insufficient capacity can receive assistance in his/her own decision-making from anybody around him or her. They might be a person appointed by the Court (a deputy), a person chosen in advance by himself/herself (an attorney), health care staffs, social care staffs and others whom he/she might come across when he/she needs help, or family members or close friends who might have been engaged in his/her care for a time. In this way, family members can continue to participate in a social network of “empowerment” and “best interests”, if they wish to and meet the required criteria. In fact, family members might have the most knowledge about the person’s present and past wishes because they have the advantage of having been close to him/her. However, this does not always mean that family members should have exclusive power or status over their weakened family members. In this paper, I will explore the issue of how we should arrange society in order to empower a person—regardless of whether or not he/she has close family members—who is not in a position to protect his/her interests by reason of an impairment or an insufficiency with respect to his/her personal faculties.