Guardianship and Health Decisions in China and Australia: A Comparative Analysis

Abstract

This article compares the Australian and Chinese adult guardianship systems, and considers whether there is potential for drawing on some (or many) aspects of the Australian model for the Chinese legal framework. Australia has a well-developed guardianship framework that provides mechanisms for making healthcare decisions when an adult is no longer able to do so. This framework has evolved over many years and, in some cases, individuals can decide about medical treatment in advance of the situation arising, or who should be the decision-maker if he or she later loses capacity. The current Chinese legal framework, on the other hand, is a fragmented one and comprises laws that were not designed to deal with how healthcare decisions can be made for a person without capacity. This article outlines the legal framework in both jurisdictions and considers whether, having regard to the fact that these two countries have different values and cultures, there are features of the Australian guardianship system that could inform the development of Chinese law.

Voluntary Guardianship Notarization: China’s Legal Remedy to Support Self-determination and Decision-making for Incapacitated Older Adults

“…The application of voluntary guardianship in China has absorbed the spirit of the Convention on the Rights of Persons with Disabilities and takes on Chinese social, political, cultural, and economic characteristics. China's notary offices, representing public power and playing judicial auxiliary functions, have embarked on a path different from that adopted in most countries, where the court plays the dominant role on the identification and declaration of guardians (Cheung 2021;Lee 2015;Willmott et al 2017). Drawing on interviews with a notary office in Shanghai, this article helps to raise the visibility of the emerging initiatives of the voluntary guardianship system, sharpening the contours and demonstrating the social functions of the notary office in the socialization of adult guardianship.…”

“…In terms of voluntary guardianship, although the legislative provisions concerning adult guardianship are fragmented in different regulations (Wang 2020;Willmott et al 2017), the legislative blank surrounding voluntary guardianship has been filled by various provisions. Legal provisions concerning adult guardianship include: Article 29 to Article 39 of the CRCL s, Article 26 of the Law of the Older adults, and Article 33 of the Civil Code.…”

“…There has been, so far, little to no research in English examining how the decision-making, autonomy, and self-determination of incapacitated older adults are supported in mainland China; previously published studies in Chinese mainly focus on court records and theoretical analysis from the perspective of law (Li 2017). Cheung (2021), Willmott et al (2017) and Lee (2015) are among the few scholars to provide an analysis of China's adult guardianship regime in English, but they primarily focus on theoretical analysis and brief discussion of the developments of the guardianship regime. The paucity of research is problematic, as it prevents recognition of adult guardianship as an important social service sector within social security, health, law and public service, and prevents adult guardianship from receiving the acknowledgment, support, and promotion that it requires.…”

Public knowledge, preferences and experiences about medical substitute decision-making: a national cross-sectional survey

“…10 Laws which facilitate medical decision-making by SDMs are common internationally, including, for example, in North America, 11 Europe 12 and the Asia Pacific region. 13 However, the terminology and legal standing of SDMs vary depending on local legislation (eg, surrogate or proxy decisionmaker). In Australia, SDMs can be nominated by the person within an advance care directive, appointed by a tribunal or assigned by laws that make provisions for a hierarchy of persons who would undertake this role when no one has been appointed.…”