Guardianship under Vietnamese law

Individuals are given by the laws the right to exercise and carry out transactions in order to ensure their legitimate rights and interests. However, in reality, there are people who are not capable of managing assets, establishing and performing legal acts, or even taking care of themselves. Civil law names the legal mechanism for protecting these people ‘guardianship’.1

1. Definition of Guardianship 

Guardianship is seen as an institution derived from the protection and caring of minors.2 Gradually, the scope of subjects being protected by guardianship regulations is expanded to incapacitated adults or adults with limited cognition or behavior control. 

Conceptually, the Legal Information Institute of Cornell Law School, USA (LII) interprets Guardianship as the legal role given to an individual to manage the personal activities (guardian of the person) or resources of another person (guardian of the estate) who cannot properly do so on their own. Guardianship often is used to give responsibilities of managing a child’s welfare to an individual besides their parents in situations where a proper parent is not available.3 As for Guardians, Black’s Law Dictionary refers to them as people legally empowered and correspondingly obliged to take care of and manage the assets and rights of those who are unable to manage and perform such tasks due to certain physical characteristics, deficiencies in age, understanding or self-control. It can be seen that guardianship regulations are created to protect the interests and assets of individuals who seem to be in a vulnerable situation. 

Civil Code 2015 of Vietnam provides a standard definition of Guardianship as: Guardianship means an individual or organization (hereinafter referred collectively to as “guardian”) is required by law or appointed to take care of and protect legitimate rights and interests of a minor or a legally incapacitated person or a person with limited cognition and behavior control (hereinafter referred to as a “ward”). Through the provisions of Civil Code, it can be seen that a guardian can be an individual or legal entity supporting, assisting, and protecting vulnerable people in terms of legal capacity through the grounds for determination are natural guardians or guardian appointed by the Commune People’s Committee or guardian appointed by the Court or chosen by the ward before being into situation where they need guardianship (authorized guardianship). 

2. Classification of guardianship

Guardianship can be classified based on the criteria of guardian, ward or basis for establishing guardianship. However, from the perspective of approaching guardianship regulations for practical application, the author analyzes the classification of guardianship based on the basis for establishing guardianship or the legal form of guardianship, which are natural guardians and appointed guardians. 

2.1 Natural guardians 

Natural guardianship is classified into two types: natural guardians of minors and natural guardians of adults.  

Regarding minors, not all minors can fall under guardianship. Clause 1, Article 47 of Civil Code 2015 stipulates that only minors in the following two cases can be guardians: (i) minors who have lost their mothers and fathers, or whose parents are unidentifiable; (ii) minors whose parents are both incapacitated persons; parents have limited cognition or behavior control; parents have limited capacity of exercise; parents have their parental rights restricted by a court; and parents do not have the means to care for or educate such minor and the parents request the minor to be a ward. 

According to Article 52 of Civil Code 2015, the natural guardians of minors in the above-mentioned guardianship shall be determined in the following order: (i) The biological eldest   brother   or eldest  sister   shall   be   the guardian of the ward; if the eldest brother or eldest sister fails to  satisfy all requirements for  acting as a guardian, the next eldest brother or eldest sister shall be the guardian, unless otherwise agreed that another biological brother or sister shall be the guardian; (ii) the paternal grandfather, grandmother or the maternal grandfather, grandmother shall be the guardian; or those persons shall agree to appoint a person or some persons to be guardian(s); (iii)  a biological uncle or aunt of the ward shall be the guardian. Article 52 of Civil Code 2015 does not list parents as the natural guardians of minors as according to Article 136 of Civil Code 2015, parents are already considered as the legal representatives of their adolescent son/daughter. Meanwhile, representation is understood as the representative establishing and performing civil transactions in the name and for the benefit of the represented person.4 Therefore, Article 52 of Civil Code 2015 are reasonable in not listing parents as natural guardians of minors.  

As for adults, Article 53 of Civil Code 2015 stipulated that the natural guardian of a legally incapacitated person shall be determined as follows: If a wife is a legally incapacitated person, her husband shall be the guardian; if a husband is a legally incapacitated person, her wife shall be the guardian; If both parents are incapacitated persons or either of them is a legally incapacitated person and the other does not fully meet requirements to be a guardian, the eldest child shall be the guardian; if the eldest child does not fully meet the requirements to be a guardian, the next eldest child shall be the guardian. In case an adult being a legally incapacitated person has no spouse or child or such person has spouse or children but they do not fully meet the requirements to be a guardian, his/her father and/or mother shall be the guardian. It is necessary to further clarify that Civil Code 2015 only regulates the natural guardian of the legally incapacitated adults. For those with difficulties in cognition and behavioral control, guardianship shall be determined in the form of designated guardianship as analyzed in the following section. 

2.2 Appointed guardians

Regarding the appointment of guardians, according to Article 54 of Civil Code 2015, under the circumstance that a minor or a legally incapacitated person has no natural guardian, the Commune People’s Committee where such person resides must appoint a guardian for the ward. The appointment of a guardian must have the consent of such person and must be made in writing, specifying the reason for appointing the guardian, the specific rights and obligations of the guardian and the status of the ward’s property. 

The Court shall be the authority for the appointment of a guardian. The appointment of a guardian is applied in case of a dispute between guardians regarding the guardian or dispute over the appointment of a guardian, specified in Articles 52 and 53 of Civil Code 2015. Apart from that, Clause 4 Article 54 of Civil Code 2015 stipulates that the guardian of a person with limited cognition and behavior control shall be appointed among the guardians prescribed in Article 53 of this Code by a court. If there is no such person, the Court shall appoint another natural or juridical person to be a guardian. 

It is necessary to emphasize that the analysis of the above classification is only for guardianship regulated by laws (legal guardianship), not including authorized/elective guardianship. The authorization or election of the guardians shall be carried out according to Clause 2, Article 48 of Civil Code 2015. Specifically, a person with full legal capacity has the right to choose a guardian for him/her and the selection of guardian must be made in writing and notarized or certified. Such guardians shall be selected if the person needs the guardianship, with the consent of the ward. 

In essence, guardianship regulations are designed and implemented to safeguard vulnerable individuals who lack the capacity to manage assets, establish and execute legal acts, and care for themselves. Therefore, guardians—whether ex officio, authorized, appointed, or designated—must diligently fulfill their role in ensuring the well-being and protection of their wards. 

(1) Ngo Huy Cuong, Nguyen Thi Phuong Cham, Tran Kien (co-editors) (2023), Civil Law 1 Textbook: General part, Hanoi National University Publishing House, p. 96. 

(2) Le Quang Vy (2021), Guardianship and guardianship supervision, Saigon Economic Times, p. 36. 

(3) https://www.law.cornell.edu/wex/guardianship. 

(4) Clause 1, Article 134 of Civil Code 2015. 

 

Disclaimers:

This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.

For issues related to the content or intellectual property rights of the article, please email cs@apolatlegal.vn.

Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Legal Retainer and contact our team of lawyers in Vietnam via email info@apolatlegal.com.

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