The guardianship system, which will include the management of individuals with senile
dementia and their assets, is now expected to become
effective as early as April next year. The Association
of Judicial Scriveners has anticipated this development
well in advance and conducted study in preparation for
this program. What made you to take such an early initiative?
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Mr. Iwasawa
It was an issue of the rights and assets of people, which we felt to be
important tasks with which we would have to deal. Problems may
begin for instance, when a real estate transaction does not
fulfill the wishes of the seller. This is a serious problem and
we may have to ascertain the limits of investigation by the
appropriate authorities.
Could you give us any case to illustrate your concern?
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Mr. Iwasawa
There was a slightly senile, aging man suffering from paralysis from the
waist down, being cared for by an individual. One day, there was
a message from a real estate office reporting that this man has
decided to sell his property estate to the individual who was
taking care of him. This was followed by another report
from the office that the man had changed mind and was reluctant
to sell the property. An investigation discovered that the man
had already drafted a will, which stated that his estate would
go to the caretaker. So it was only natural that when the
caretaker found that the property would be coming to him
eventually, he was reluctant to pay money for the same
property. Yet, further inquiry discovered that this aged
man had no intention of giving his property to the caretaker. It
was also discovered that not only had the caretaker dictated the
will, but had also tried to get the man to withdraw his
savings.
It has also been widely reported that elderly
individuals, especially those who live alone, are exposed to a
wide variety of consumer-related problems as their intellectual
and decision-making capabilities deteriorate, depriving them of
receiving legitimate social security and other benefits.
A declaration of incompetence is used to protect those individuals who
have lost such capability. What do you think of the
legitimacy of the current system?
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Mr. Iwasawa
The biggest problem is the fact that the present system is not fully
exploited, nor is it easily exploitable. Yet, the other aspect
of the present incompetence system is its lack of human
consideration for those who are mentally handicapped. It is
reminiscent of the old style remittance system copied after the
French civil code. The French Revolution was carried
out by citizens, whereas Japanese reform was government
originated.
Citizen rights in France are actually government
given privileges in Japan.
So the Japanese incompetency
system was not designed to protect human dignity but to
assure the smooth flow of business transactions.
Another
case. An eldest son requested the court to declare his
father incompetent. When the court confirmed the state of
the father, the second son protested, saying that the elder
brother requested the ruling in order to abuse the father's
property as a his guardian. In this case, the court then
designated the second son as guardian. A year later, when
the court verified the latest status of the father, it found
that he had been put in an institution, while the two brothers
resolved their differences and split their father's property
fifty-fifty. This episode indicates that the incompetency system
is not necessarily functioning to protect aging citizens. On the
contrary, it is frequently abused by individuals seeking control
of their aging family member's property.
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