Implementation of guardianship in accordance with Vietnamese law

Guardianship is considered a legal mechanism designed to protect individuals who lack the capability to manage assets, establish and execute legal acts, or even care for themselves. As such, guardians play a crucial role in the implementation of guardianship, with their rights and obligations clearly defined by the law and accompanying instructions for its execution. Furthermore, a guardianship monitoring mechanism is established to ensure that guardians consistently act in the best interests of the ward. This article delves into the analysis of the implementation of guardianship under Vietnamese law. It covers the rights and obligations of guardians during the performance of guardianship, the mechanism for supervising guardianship, and the processes involving changes in guardianship, transfer of guardianship, and termination of guardianship. 

1. Rights and obligations of guardian 

In order to provide guardianship, the guardian is legally entitled to be given certain rights to assume and carry out the responsibilities of healthcare, spiritual and material life of the ward. According to Article 58 of Civil Code 2015, the guardian of a minor or a legally incapacitated person shall have the rights to use the property of the ward in order to take care of and pay for the needs of the ward, to receive payment of all necessary expenditures on management of the property of the ward and to represent the ward in the establishment and performance of civil transactions in order to protect legitimate rights and interests of the ward. 

From the perspective of the natural element of guardianship regulations, obligations of a guardian is seen as a natural protection for people with absolute inability to protect themselves, the guardian’s obligation towards a minor or for adults who cannot take care of themselves (incapacitated) shall be distinctive from the obligations of guardian towards people with limitation in judgment, instead of completely incapacitated.1 Accordingly, for minors, depending on their age, the guardian shall assume all the responsibilities of care, education, property management and representation of the ward in the establishment and performance of civil transactions to protect legitimate rights and interests of the ward.2 Towards people who have limited legal capacity, the special obligation to ensure medical treatment for the ward shall be provided by the guardian.  

Apart, the guardian of a person with limited cognition and behavior control shall have rights specified in the decision of the Court, among the rights and obligations of the guardian of a minor or a legally incapacitated person. This regulation is established based on the fact that a person with limited cognition  and behavior control who is not completely incapacitated, but depends timely on their health and mental condition, is capable of expressing his/her will. Therefore, at the time the Court makes a decision, people with difficulties in cognition and behavior control shall rely on their will to determine the scope of rights and obligations of the guardian.3

2. Supervision of guardianship 

2.1 Guardianship supervisor 

The guardian, as a person acting on behalf for the benefit of the ward, is legally given the rights and obligations to carry out activities related to the ward’s legitimate rights and interests. However, from economic and legal theory, there is no expectation that the guardian shall diligently and wholeheartedly perform such duties for the benefit of the ward but for their own interests. The guardian in many cases, abuses the guardianship to carry out civil transactions which are damaging and even harmful to the property and health of the ward.4 Therefore, the law has established a guardianship supervisor mechanism to ensure that guardians always act in the interests of the ward. 

According to of Article 51 of Civil Code 2015, the relatives of a ward shall have the responsibility to appoint a representative to supervise the guardianship in among the relatives or appoint another natural or juridical person to act as a guardianship supervisor and the appointment of guardianship supervisor must have the consent of such person. Relatives of a ward include his/her spouse, parents, and children; if there is no such person, relatives of the ward mean his/her grandparents and biological siblings; if there is also no such person, relatives of the ward mean his/her biological uncles and aunts. The law currently stops at listing the final cases of subjects considered to be relatives to appoint the guardian supervisor, namely biological uncles, and aunts of the ward. Thus, in case the ward has no relatives listed above, is there any mechanism to supervise the guardianship? 

Basically, the way of establishing a guardianship supervisor is similar to the way of establishing a guardian. As analyzed, in case the ward has no natural guardian, the Commune People’s Committee where such person resides must appoint a guardian for the ward. Similarly, Clause 2, Article 51 of Civil Code 2015 stipulates that in cases there is no relative of a ward or the relatives fails to appoint a guardianship supervisor, the Commune People’s Committees where the guardian resides shall appoint a natural or juridical person to supervise the guardianship. If there is a dispute over the appointment of guardianship supervisor, it shall be subject to a court’s decision. 

The concern is in case the guardian appointed by the Commune People’s Committee (who can be a relative or non-relative of the ward) does not act in the interests of the ward, especially when the guardianship involves assets managing of the ward, is there any mechanism exist to control the guardian from taking personal advantage? This issue is currently not bound and governed by legal regulations. Therefore, in this case, greater diligence and confidence are expected in both the guardian and the guardian supervisor that they shall truly act in the interests of the ward. 

2.2 Conditions of the guardianship supervisor 

In terms of the requirements to be guardian, the civil laws clearly stipulate that each supervisor being natural person must have full legal capacity, each supervisor being juridical person must have legal personality in conformity with the supervision and each juridical person who meets all of the following requirements may act as a guardian supervisor. Determination of the necessary conditions to conduct guardianship supervision is first given to the relatives of the ward, due to the fact that the ward and their relatives have inherent relationship with each other, consequently, the necessary means to conduct the supervision will be accurately decided by them. In case there is a dispute over the appointment or selection of a guardian supervisor, the Court will determine the necessary conditions for supervision by relatives to decide who will supervise the guardianship. 

2.3 Rights and obligations of the guardianship supervisor 

The guardianship supervisor shall have the rights and obligations to: (i) Monitor and inspect the guardian in the guardianship; (ii) Examine and offer opinions in writing in terms of establishment and performance of civil transactions prescribed in Article 59 of Civil Code 2015; (iii) Request a regulatory agency in charge of guardianship to change or terminate the guardianship or supervision of guardianship.  

With regard to the sale, exchange, lease, lending, pledge, mortgage, deposit and other transactions involving the property of the ward, which has a high value, must have the consent of the guardianship supervisor. However, current law does not clearly stipulate the form of expressing the supervisor’s consent, whether the guardianship is required to be in writing or not, in cases where the guardian carries out transactions with verbal consent, of the person supervising the guardianship, but then the person supervising the guardianship changes their will, disputes will easily arise. Therefore, caution in the behavior of the guardian and guardian supervisor is a core factor to avoid disputes when implementing any regulations that are related to the ward. 

3. Replacement of guardian, Transfer of guardianship and Termination of guardianship 

3.1 Replacement of the guardian

Firstly, a guardian may be replaced in any of the following cases: (i) The guardian no longer meets all of the requirements of Civil Code; (ii) The guardian being a natural person dies or is declared by court limited cognition or behavior control, limited legal capacity, incapacitated, missing or the guardian being a juridical person cease to exist; (iii) The guardian seriously violates a guardian’s obligation; (iv) The guardian proposes his/her replacement and another person agrees to assume the guardianship. 

It can be seen that the replacement of guardian comes from the basis of implementation of guardianship for the ward when the guardian is no longer suitable to perform his or her role. Currently, the procedure for replacing the guardian is carried out according to the provisions of the law on civil status. Specifically, according to Article 23 of the Law on Civil Status 2014, in case of requesting to replace the guardian according to the provisions of Civil Code when there is another person qualified to be the guardian, the parties shall carry out procedures for registration of termination of the previous guardianship and register for a new guardianship according to the provisions of the Law on Civil Status. 

3.2 Transfer of guardianship  

The transfer of guardianship shall be carried out upon the replacement of a guardian. According to Article 61 of Civil Code 2015, within 15 days from the date the new guardian is found, the person who formerly conducted the guardianship must transfer the guardianship to the new replacement. The transfer of guardianship must be made in writing, specifying the reason for the transfer and the status of the ward’s property, other relevant issues at the time of transfer. The agency which appointed the guardian and the guardianship supervisor shall witness the transfer of the guardianship. 

In cases where the guardian cannot transfer guardianship for reasons such as the guardian being a natural person dies or is incapacitated of legal capacity, … prescribed in Clause 1 Article 60 of Civil Code 2015, the agency which appointed the guardian shall make a record thereon, clearly stating the status of theward’s   property   and   the   rights   and   obligations which have arisen in the course of performing the guardianship for transfer to the new guardian with the witness of the guardianship supervisor. 

3.3 Termination of guardianship 

According to Article 62 of Civil Code 2015, s guardianship shall be terminated in the following cases: (i) The ward attains full legal capacity; (ii) The ward dies; (iii) The ward’s father and/or mother have/has fully met the conditions to exercise his/her rights or fulfill his/her obligations; (iv) The ward has been adopted. Therefore, the termination of guardianship follows the nature of guardianship which arises when the ward is no longer in a state that requires guardianship, which includes the case where the ward dies and the ward has the ability to take care of and manage assets by themselves or by their parents, an adoptive father or an adoptive mother. 

The procedures for termination of guardianship shall comply with the provisions of Article 22 of the Law on Civil Status 2014. Accordingly, requesters for guardianship termination registration shall submit guardianship termination registration declarations, made according to a set form, and papers serving as the basis for guardianship termination as prescribed by Civil Code to the civil status registration agency. Within 2 working days after receiving complete papers, if seeing that the conditions for guardianship termination are fully met in accordance with Civil Code, the justice and civil status officer shall record the guardianship termination in the civil status book and together with the guardianship termination registrant sign in the civil status book, and report to the chairperson of the commune-level People’s Committee to issue an extract to the requester. 

With regard to the legal consequences of termination of guardianship, when guardianship ends, the guardian shall make in writing under supervision of the guardianship supervisor in order to settle up the property and transfer all rights and obligations arising for the transferees depending on the circumstances listed in Article 63 of Civil Code 2015. 

Generally, current law has specific and relatively complete regulations to amend guardianship, legally acting for the ensuring of rights and interests of people who need guardianship, to be conducted. On the other hand, the application of legal regulations on guardianship needs to be implemented fully and accurately to limit unnecessary disputes between parties involved in this humane mechanism. 

(5) Ngo Huy Cuong, Nguyen Thi Phuong Cham, Tran Kien (co-editor) (2023), ibid, p. 108. 

(6) Article 55, 56 of Civil Code 2015. 

(7) Article 57, 58 of Civil Code 2015. 

(8) Ngo Huy Cuong, Nguyen Thi Phuong Cham, Tran Kien (co-editor) (2023), ibid, p. 111. 

 

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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