FOCUS: Japan to Revise Guardianship, Will Systems as Population Ages

Tokyo, April 14 (Jiji Press)–The Japanese government approved a bill this month to amend legislation, including the Civil Code, with the aim of revising the adult guardianship system and allowing the use of digital wills. The proposed changes, based on recommendations from the Legislative Council, an advisory panel to the justice minister, are intended to make both systems more user-friendly and better suited to people’s needs amid the rapid aging of the national population. The government hopes the amendments will be enacted during the current session of parliament. If passed, the revised adult guardianship system will take effect within 30 months, while the digital will system will be introduced within a year. Midway Termination In the revision of the adult guardianship system, which supports property management and related matters for people with dementia and other conditions, a new mechanism allowing adult wards of court to leave the system midway will be introduced. Currently, users cannot do so unless their decision-making capacity is determined to have recovered. When the system is employed for a specific purpose such as the division of an estate, those under guardianship will be allowed to stop relying on the system upon petition or on the family court’s own initiative if the court determines that related affairs have been completed and support is no longer necessary. With the revision, the current system, which is divided into three categories according to the abilities of adult wards in descending order of the severity of cognitive impairment–guardianship, curatorship and assistance–will, in principle, be consolidated into assistance, with the other two abolished. In the category of guardianship, the guardian has held comprehensive representative powers, which may tend to excessively restrict the user’s right to self-determination. After the revision, authority will be granted only for matters for which the individual needs help, and limited use of the system, only to the extent and period needed, will become possible. To ensure support tailored to the adult ward’s needs, the replacement of guardians and others will also be made more flexible. Even in the absence of misconduct including embezzlement, dismissal or replacement will be permitted if appropriate protection cannot be provided, such as if the guardian neglects to meet with the individual under guardianship. In addition, it will become mandatory to respect the user’s wishes when appointing a guardian, and guardians will be expected to ascertain the user’s intentions in carrying out their duties. Furthermore, the system’s usability will be improved, with assistants being authorized to handle posthumous matters, such as contracts for cremation and burial. Reducing Burden In revisions to the framework governing wills, a format for digital wills will be newly introduced in response to the wider use of digital technology. The current autographic will system mandates the testator to handwrite the entire text except for the inventory of assets, which has imposed a heavy burden on elderly people and others. Under the new system, applications can be filed with the legal affairs bureau to store will data created on a personal computer or smartphone, as well as printed documents. To prevent impersonation by third parties and the creation of wills contrary to the testator’s intent, the individual concerned will be required to either visit the legal affairs bureau in person or use an online conference and orally state the full text of the will to a member of the bureau staff. As the legal affairs bureau will keep the will in official custody, there will be no risk of loss or tampering. Probate procedures in the family court after the start of inheritance will also be waived. In light of the decline of “hanko” personal seal culture, accelerated by the COVID-19 pandemic, the prerequisite for testators and witnesses to affix their seals to autographic wills and other such documents will be completely abolished. Requirements will also be substantially relaxed for “special-form wills,” which are permitted when death is imminent for the testator due to sudden illness or an accident. Currently, the preparation of such a will requires the presence of at least three witnesses. New methods will be introduced to allow the number of witnesses to be reduced to a minimum of one if the circumstances are audio- or video-recorded, and to permit the use of online conferencing. The situations in which such wills may be prepared will be expanded to include natural disasters such as large-scale earthquakes. END [Copyright The Jiji Press, Ltd.]