| 中文摘要 |
社會高齡化加上家庭功能弱化，高齡者逐漸無法倚賴同居之家屬，而必須轉向市場獲取財產管理及人身照顧之服務。我國信託業者雖推出了安養信託等商品，但因現行信託法及民法監護制度之框架，有諸多受限之處。本文考察美國兩種可規避監護制度的生前信託制度：可撤銷信託與財產管理信託，發現可撤銷信託原本的功能是規避遺產查驗，近來才逐漸發揮監護替代作用，其特色是當委託人有判斷能力時，保留給委託人極大的權限。至於財產管理信託，係以立法方式所肯認之不可撤銷信託，此制度關注者是「受益人」而非「委託人」之利益；不過，它吸收了可撤銷信託的長處，亦即在「受益人」尚有判斷能力時，保留給受益人很大權限，直到受益人失去能力後，受託人才獲得裁量權。此外，美國對於法定監護的最後手段性，以及信託與法定監護、持續性代理權授與並存時的權限調整，都有明文規範，以確保本人的意願獲得尊重。有鑑於此，我國也應重新考慮是否緩和信託的要物性規定，以及明訂法定監護的最後手段性，並規定當法定監護與信託並存時，監護人更動信託應經法院許可，以增進信託關係的安定性及強化本人之自我決定。
With the population aging and the weakening of family solidarity, it has become more difficult for the seniors in Taiwan to receive property manage and physical care from their families. Sometimes they need to purchase service from the market. Responding to these needs, trust companies have designed products such as ＂trust for elder care＂, but due to the current framework of Trust Law and the Civil Code, these products are not as much popular as expected. In order to find a solution, this article researched revocable trusts and custodial trusts, both recognized to be a useful device for incapacity planning in the U.S. The original function of revocable trusts was probate avoidance but recently it has been pointed out that a revocable trust is commonly used as a conservatorship substitute in planning for incapacity. While the trustee holds legal title to the trust property, the settlor has the power to revoke the trust and direct the trustee. That is to say, the trust property is under the settlor's continued dominion and control. Upon the settlor's incapacity the trustee can assume fiduciary control of the trust property. In terms of custodial trusts, it is a statutory irrevocable trust where the settlor/transferor often names himself/herself as beneficiary. A custodial trust is a common administrative trust under which the trustee has the rights and powers over custodial trust property. Nevertheless, the right to direct the trustee and terminate the trust is retained to the beneficiary if the beneficiary is not incapacitated. Hence, it can accommodate the senior's wish to keep control of the property while capacitated and provide management of assets in the event of incapacity. Furthermore, guardianship/conservatorship is undoubtedly a last resort while there is no other less restrictive alternative. In the event that the elder is under guardianship or has a power of attorney, the power of the guardian or agent to amend or revoke a trust is limited by statute. From the experience of the American trust law, Taiwan needs to consider abandoning the requirement of the transfer of property in order to create a trust, which makes the elderly settlor reluctant to use a trust as an estate planning tool. Secondly, it is necessary to restrict the guardian's power to amend or terminate the trust set up by the protected person. More specifically, the modification of the trust done by the guardian should be reviewed and approved by the court. As a result, it will increase the credibility and stability of the trust and empower the autonomy of the protected person. |
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