[Korean Law Insights] The Adult Guardianship System in Korea
- K-Law Consulting_Administration
- Mar 13, 2024
- 3 min read
Updated: Feb 24
[Published on March 12, 2024 edition of the "Korean Law Insights" column in the Korea Daily’s Economic Expert Section]
A Court-appointed Guardian Must Manage with Fiduciary Duty
Prior Review and Coordination Among Family Members Are Crucial
Many Koreans living abroad worry about their elderly parents in Korea suddenly making excessive donations, spending unnecessarily, or having their assets mismanaged by siblings who are caring for them. In principle, under Korean law, an adult has the right to use their own assets as they see fit. Even if there is suspicion that a sibling is recklessly using a parent’s assets, unless a crime is involved and the parent consents to such use, it is difficult to dispute the matter directly—though tax implications such as gift tax or other legal aspects may need to be reviewed.
However, if a parent has been diagnosed with Alzheimer's or suffers from other mental impairments, it may be worth considering Korea's adult guardianship system. This system is designed to protect the assets and personal well-being of an adult with mental limitations by appointing a guardian through the court. This court-appointed guardian then manages the individual’s assets and affairs and can act on their behalf in legal matters.
A petition for adult guardianship can be filed with a Korean court by a spouse, children, or other relatives within the fourth degree of kinship. Additionally, the individual themselves may file the petition if they recognize the need to protect their own assets. When a guardianship petition is submitted to the Korean court, the court assesses whether the individual has a mental impairment and to what extent. This evaluation is typically conducted through an expert assessment; however, if a medical certificate from a trusted medical institution is provided, the court may make a determination without requiring a separate assessment.
Meanwhile, the court generally conducts an interview with the individual to respect their wishes and remaining capacity. However, if the court determines that the individual's mental impairment is severe or that guardianship is necessary for their overall well-being, it may initiate adult guardianship against their wishes.
When initiating adult guardianship, a guardian must be appointed, which can sometimes lead to disputes among family members over who should take on the role. However, once the responsibilities and obligations of a guardian are fully understood, everyone generally agrees that the person best suited to fulfill the role should be appointed as the guardian. A guardian does not have the authority to manage or dispose of the ward’s assets at their own discretion. Instead, they are obligated to act as a diligent caretaker, managing and handling the assets in a way that best benefits the ward. Additionally, any actions involving the disposal of the ward’s assets or incurring debts on their behalf (such as taking out a bank loan) require prior court approval and may also require post-transaction reporting to the court.
In cases where family members disagree and inquire about appointing a third party as the guardian, it is important to consider that guardians are generally compensated from the ward’s assets and are bound by the responsibilities outlined above. Given these factors, unless there are special circumstances, it is preferable for a close family member or relative who can provide the best care for the ward to be appointed as the guardian.
Preparing and submitting the necessary documents to the Korean court for an adult guardianship petition is not a simple process. Moreover, if the documents are incomplete or if family members fail to reach an agreement, the process may be delayed, leading to increased costs and potentially escalating into more serious legal disputes in the future. Therefore, it is crucial to seek expert assistance from the outset to assess whether guardianship is applicable and beneficial before proceeding with the petition.
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Jin Hee Lee/K-Law Consulting Korean Attorney
[Reference link in original Korean]
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