The Guardianship Systems and Aging Populations: A Comparison of Thailand and Japan

Abstract

In Thailand, where population aging is progressing at a faster pace than in developed countries, it is expected that elderly persons who possess inadequate judgment will face an increasing number of contractual disputes in the future. Therefore, with regards to the guardianship system that is expected to play an important role in solving such problems, this study analyzes the current status and problems of such system in Thailand by comparing it with the Japanese system, which was used as a reference when drafting the Civil and Commercial Code. In Thailand, if a person who is incapable of judgment is declared incompetent by a court, the person is not only unable to perform property acts independently but also, unlike in Japan, cannot perform personal status acts such as marriage and wills. It is clear that the rights of persons with inadequate judgment are greatly restricted and that they must live only under the protection of their guardian. This paper thus proposes that it is necessary to replace the current system of substitute decision-making with a system of supported decision-making that respects the right to self-determination.