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Makoto Arai

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Adult Guardianship System and the Right to Vote

Makoto Arai
Professor, Faculty of Law, Chuo University
Areas of Specialization: Civil Law, Trust Law

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1. Tokyo District Court ruling of March 14

The Public Offices Election Act takes away the right to vote from wards under guardianship for adults. A Tokyo District Court ruling on March 14, 2013 declared this provision of Public Offices Election Act unconstitutional and invalid.

Although the adult guardianship system supports wards in matters of finance and physical care, the fact that the system has deprived them of their basic right to vote as citizens is completely unacceptable. An urgent legal revision is absolutely necessary. I expressed my views for a legal revision at an interview by the members of the parliament in charge of the leading parties' project team on wards under guardianship for adults and the right to vote, for their meeting held on April 12. My proposal was that Article 11, Paragraph 1, Item 1 of the Public Offices Election Act, which deprives wards of the right to vote, be removed and all wards be given voting rights. As for their actual exercising of that right, I proposed that the best way forward at first would be an amendment to the details of the proxy vote system in Article 48 of the Act while confirming voters' actual ability to exercise their right to vote, and preventing voting fraud at the same time. This is the direction that I hope the debate will take.

In any event, the March 14 ruling was a landmark event that has made many people aware of the flaws in the adult guardianship system and provided the momentum for legal reform.

2. World conference on adult guardianship laws

In fact it is not true that the above issue has been revealed for the first time by the ruling of the Tokyo District Court. The problem was pointed out a long time ago but never actually came to a head.

I am one of those who have tried to focus attention on the reform of the adult guardianship system. The Japan Adult Guardianship Law Association, of which I am President, played a central role to hold its world conference, where the release of an announcement for reforms to adult guardianship systems was planned. The first ever world conference on adult guardianship laws was held for a three-day period from October 2, 2010, in Yokohama City. The conference was extremely informative, bringing together around 500 participants from 16 countries for a frank debate on the current issues surrounding adult guardianship systems, including their respective countries' situations. It later approved the release of the Yokohama Declaration, a summary of the three-day discussion.

3. Yokohama Declaration

On legal reform, the Declaration states as follows: "Although the current Adult Guardianship Law specifies that a guardian of an adult must be assigned with power of attorney for the adult's property only, the guardian's power of attorney should not be limited to property management alone and this point should be revised. The guardian should be able to consent to medical treatment for the adult as well." This statement is intended for casting off traditionally held notions and meeting the needs of physical custody among users. The ideas within the current adult guardianship law, which does not acknowledge the consent rights of adult guardians in regard to ward's own medical treatment, require urgent change.

The Declaration also states that: "Disqualifications remaining in the current adult guardianship system should be abolished. There are no rational grounds for disfranchisement on the determination of the commencement of guardianship. Doing so contravenes the principles of the constitutionally guaranteed right to vote and represents a gross violation of basic human rights." The problem of wards under adult guardianship forfeiting their voting rights was already pointed out there. As a result of the current adult guardianship system, the ward is not only restricted in capacity in financial matters but also, due to the numerous grounds for disqualification, stigmatized and prevented from full societal participation. This conflicts with the idea of normalization, which is a principle of the Public Offices Election Act, and may be a contributing factor in people's hesitation to utilize the system.

4. Public support system

According to the Declaration, the adult guardianship system should be available to anyone, irrespective of the size of their assets or whether they have a petitioner, and so it is essential that the government publicly support the adult guardianship system as a whole. Such a public support system means achieving the socialization of guardianship for adults, and the establishment of a governmental system of support has been proposed. The Declaration also states that "the further expansion and strengthening of the functions of the judiciary, and especially of the family courts, in the running of the adult guardianship system should be a major premise of the smooth implementation of the public support system," and that "the establishment of such a public support system will extend the network between the ward's family and the professions of ordinary citizens and help to secure a suitable adult guardian and reinforce the rights protection function of the adult guardianship system."

As a matter of fact, the top priority that the authors of the Declaration had in mind was the establishment of such a public support system. What will really make the adult guardianship system work is not the clauses within the law, but rather a system that embraces the spirit of the law and embodies its principles. Such a system is missing for Japan's adult guardianship system.

5. Closing words

Remedying the loss of voting rights of all wards under guardianship for adults is no more than the first step in the socialization of guardianship for adults. The road to complete socialization of guardianship for adults is far longer. But we must not stand in the way of its progress.

Makoto Arai
Professor, Faculty of Law, Chuo University
Areas of Specialization: Civil Law, Trust Law
Born in Niigata Prefecture in 1950. Graduated from the Faculty of Law, Keio University. Dr. jur. at Ludwig Maximilians University Munich in 1979. He was at Chiba University, University of Tsukuba and other institutions before taking up his current post in 2011.
The President of the Japan Adult Guardianship Law Association and Standing Director of the Japan Association of the Law of Trust.
He received the Humboldt Research Award in 2006, and the Officer's Cross of the Order of Merit of the Federal Republic of Germany in 2010.
Current areas of study include the regeneration of the concept of legal instruments, utilization of the trust system in an aging society, and theory construction of the promotion of adult guardianship utilization.
His major works include: Trust Law (3rd ed.) [Sintakuho (dai 3 han)] (Yuhikaku, 2008); Visions of the Trust Law System [Shintakuhosei no tenbo] (co-author, Nippon Hyoron Sha, 2011); Visions of the Adult Guardianship Law System [Seinenkokenho no tenbo] (co-author, Nippon Hyoron Sha, 2011).