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The Global Transition from Substitute Decision-making of Adult Guardianship to Assisted Decision-making

The assisted decision-making system, which acknowledges the civil capacity of persons with mental retardation, is fundamentally different from the substitute decision-making system in traditional civil law, which denies the civil capacity of persons with mental retardation. As a brand-new system in the 20th century, assisted decision-making system has been widely used in the legislation and practice of the two major legal systems, with positive results. This system is also working very well in China's civil and judicial practices. Now the draft Title of Marriage and Family of the Chinese Civil Code has been released to the public for soliciting comments from various sectors of society. Taking this opportunity, the author of this article puts forward the following suggestions on the improvement of the draft law: guardianship should be provided for as a separate chapter in the Title on Marriage and Family after the chapter on adoption and this chapter should be divided into two parts: adult guardianship and child guardianship. Adult guardianship should be further divided into monitoring and assistance. The section on monitoring should provide for the final monitoring principle and the minimum monitoring principle and clarify the sequence of application of monitoring and assistance, so as to gradually reduce complete monitoring in preparation for its ultimate abolition; persons with mental disability should be given the permanent right of appeal to ensure their participation in the process; "the respect for self-determination" should be provided for as a part of the standard on the performance of functions by guardians; special guardianship measures should be provided for; and, in the section on "assistance", Article 33 of the General Provisions of the Civil Law should be further elaborated by providing for durable powers of attorney agreements and medical advance directives.