意定監護法律風險管理實務

Practical Legal Risk Management for Adult Guardianship by Agreement

生老病死乃生命的自然規律，我國於2025年已邁入超高齡社會，隨著失智人口增加，成年人監護宣告家事事件也同步增多。2019年仿日本等國立法例，於民法增訂成年人意定監護契約優先制度，於本人（委任人）意思能力尚健全時，本人與受任人約定並經公證成立，依當事人意思自主原則，於本人受法院監護宣告時生效，就受監護人之生活、護養療治及財產管理等事項，受任人允為擔任監護人之契約，以替代法院依職權選定監護人。本文基於法律風險管理預防勝於治療理念，從監護宣告法制規範及其立法目的出發，對照官方版本契約書範本，結合自身擬定契約之實務經驗，期盼能以客製化符合個人需求的契約內容，區分輕、重、緩、急，分別或共同執行監護職務，強化監督機制，搭配預立醫囑、死後遺囑信託等配套之執行，更周延有效防範爭產、遺棄、詐騙等糾紛，具體實踐受監護人之最佳利益。

Birth, aging, illness, and death are natural stages of life. In 2025, Taiwan officially became a super-aged society. As the population living with dementia continues to increase, the number of family cases involving declarations of adult guardianship has also risen. In 2019, drawing on the legislative models of Japan and other countries, Taiwan amended its Civil Code to establish a system giving priority to voluntary adult guardianship agreements. Under this system, while the principal still possesses full mental capacity, the principal and the appointed guardian may enter into a notarized agreement. Based on the principle of party autonomy, the agreement takes effect when the principal is subsequently placed under guardianship by a court. The appointed guardian then agrees to assume responsibility for matters concerning the protected person’s daily life, personal care, medical treatment, and property management, thereby replacing a guardian selected by the court on its own authority. Guided by the legal risk management principle that prevention is better than cure, this article begins by examining the legal framework governing declarations of guardianship and the legislative purposes underlying that framework. It then compares the official model agreement with the author’s practical experience in drafting guardianship agreements. This article proposes the use of customized contractual provisions tailored to individual needs, allowing guardianship responsibilities to be performed separately or jointly according to their nature, seriousness, urgency, and priority. It further recommends strengthening supervisory mechanisms and coordinating voluntary guardianship agreements with advance healthcare directives, testamentary trusts, and other supporting arrangements. Through these measures, disputes involving inheritance, abandonment, fraud, and similar risks may be prevented more comprehensively and effectively, thereby giving practical effect to the best interests of the protected person.