As South Korea enters an aging society, interest in the adult guardianship system is growing. This system allows courts to appoint guardians for adults who are unable to manage their affairs due to illness, disability, or old age, and demand for professional guardians is expected to rise.
In response to this trend, the Korea Guardianship Association, led by President Park Eun-soo, recently established the Decision Support Research Institute, appointing Kim Yoon-jung, a partner at YK Law Firm and a former family and juvenile court judge, as its first director. The institute aims to propose legislation and policies that effectively guarantee the self-determination rights of individuals with decision-making difficulties, such as those with developmental disabilities or dementia.
In an interview with Aju Economic Daily, Kim, who has over 20 years of experience as a judge and lawyer, shared insights on the current state and future of South Korea's guardianship system, as well as recent trends in family and divorce litigation. Below are excerpts from the interview.
- You identified the standardization of fees for professional guardians as a key task for the Decision Support Research Institute. What do you see as the main confusion arising from the current fee assessment methods?
The biggest confusion in the current adult guardianship practice is that the fee standards do not correlate with the complexity of the case, the scope of work, or the duration of service, leading to significant variations between courts and cases. This makes it difficult for professional guardians to secure predictable fees relative to their work, and conversely, wards may find themselves without adequate explanations of the cost structure when guardianship begins.
The issue is compounded by the fact that fees are primarily calculated based on simple management tasks, failing to adequately reflect the responsibilities involved in decision-making support, medical and welfare coordination, and asset management. Through this research, we aim to establish standardized fee criteria based on the scope and complexity of work, ensuring predictability and sustainability for professional guardians, which will ultimately enhance the quality of guardianship services. Clear fee standards will enable qualified professionals to participate reliably in guardianship work, benefiting the wards in the end.
- Having previously worked as a family and juvenile court judge and a research fellow at the Judicial Policy Research Institute, how do you view the limitations of the guardianship system from both perspectives?
From the perspective of the court and research institutions, the core task of the guardianship system was to refine its design and principles, focusing on the necessity of guardianship, the principle of minimal intrusion, and the protective structure for wards.
In contrast, the biggest challenge I face in practice today is the feasibility of implementing these principles. While the courts focus on creating and interpreting the system, the challenge in the field is ensuring that the system operates effectively in people's lives. Actual cases often involve diverse ward conditions, family conflicts, property disputes, and medical decision-making, which cannot be resolved solely through legal principles.
The decision-making support model ideally maximizes self-determination rights, but in reality, practical judgment burdens arise in cases where the boundaries of decision-making capacity are unclear. This highlights the gap between the ideal standards set by the courts and the practical feasibility in the field.
- With the aging society, the importance of voluntary guardianship is being emphasized. However, there are concerns about its underutilization in practice. What institutional improvements do you think are necessary to activate voluntary guardianship?
In the context of super-aged society, nuclear family structures, and the rapid increase in single-person households, voluntary guardianship must become an essential tool for life planning rather than an option. Everyone will inevitably face aging and cognitive decline during their lifetime. We have entered an era where everyone must prepare for the possibility of diminished cognitive abilities. Voluntary guardianship allows individuals to set their own standards for managing and disposing of their assets while designating trusted individuals when they are still healthy and cognitively intact.
Unlike adult guardianship, which involves posthumous intervention by the state or courts, voluntary guardianship is most faithful to the ultimate principle of the adult guardianship system: respecting self-determination rights. However, despite its innovative and necessary nature, the main reason for its lack of activation in practice is the insufficient promotion at the government level and the absence of public awareness.
Many people still do not know about this system or mistakenly believe it is only for the wealthy. Therefore, to promote voluntary guardianship, it is urgent to shift public perception through active national promotion, recognizing it as a fundamental right and essential preparation for aging. Additionally, simplifying notarization procedures and distributing standard contract models linked to medical and financial institutions are necessary institutional improvements to help citizens confidently protect themselves from the anxieties of an aging society.
- Traditionally, family guardians have been central to the adult guardianship system, but the role and necessity of corporate guardians are increasingly emphasized. What advantages and social significance do corporate guardians hold, and how do you see the future development of the guardianship system?
It is true that the adult guardianship system has historically operated on a family-centered structure. However, as aging, the increase in single-person households, the weakening of family ties, and the complexity of asset structures progress simultaneously, areas that cannot be managed solely by family guardians are expanding.
In this context, corporate guardians can function as a key pillar in securing the professionalism and sustainability of the guardianship system, rather than merely serving as a substitute. While family guardians have the advantage of emotional bonds, they also face structural limitations, such as conflicts of interest, emotional involvement, and issues with long-term management sustainability.
In contrast, corporate guardianship operates through organizational systems rather than individual decision-making, providing a stable structure in terms of objectivity, professionalism, and continuity. In modern guardianship structures, where asset management and medical and welfare decisions are intertwined, a corporate-based decision-making structure that allows for multidisciplinary review is becoming increasingly important. However, it is essential that corporate guardianship also has a framework for accountability and oversight. In the future, it is likely that family and corporate guardianship will evolve in a way that differentiates their respective roles rather than competing with each other.
Nonetheless, in the medium to long term, there is a strong possibility that the system will gradually shift towards a greater emphasis on corporate guardianship, driven by changes in social structures. Ultimately, the key issue is not who is better, but designing the optimal decision-making support structure that fits the circumstances of the ward, and the role of corporate guardians will likely become more significant in that process.
- Last year, the Constitutional Court's ruling on the reserved portion clause caused a seismic shift in the field of family inheritance. What limitations did you observe in the previous reserved portion rulings during your time as a presiding judge, and what are the most significant changes you are experiencing in actual inheritance litigation following this decision?
The limitations of previous reserved portion rulings were characterized by a rigid judgment structure overly focused on formal equality. The contributions and the actual diversity of family relationships were not adequately reflected, leading to prolonged disputes. Following the Constitutional Court's ruling, the most significant change is that inheritance disputes are shifting from a results-oriented focus to a process-oriented one. It is no longer just about restoring legal shares but also actively contesting contributions made during the deceased's lifetime, the realities of family relationships, and the processes of asset formation. Practically, there is a noticeable increase in attempts to resolve disputes through negotiation and mediation, and the courts are also moving away from mechanical assessments towards more precise fact-finding inquiries.
* This article has been translated by AI.
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