The Sound of the Two Sessions｜It is difficult to implement the “intended guardianship”. Committee members propose that it is urgent to clarify the leading department
Older people who transfer their property to fruit vendors have sparked controversy, and those who live alone face difficulties in signing agreements for medical treatment or nursing care due to a lack of guardians. As China’s population ages and the number of childless elderly and empty-nest elderly increases, the issues facing these elderly people due to a lack of guardians are becoming increasingly prominent.
The process of selecting a trusted individual or organization to act as a guardian in the case of incapacitation while the person is still capable of making decisions is commonly referred to as “intentional guardianship.” Article 33 of the Civil Code of the People’s Republic of China stipulates that “adults with full capacity for civil conduct may negotiate with their relatives or other individuals or organizations willing to act as guardians in advance and determine their guardians in written form, who will perform guardianship duties when they lose or partially lose their capacity for civil conduct.”
“This provision on intentional guardianship is an important breakthrough in China’s guardianship system. However, due to incomplete legal norms and some practical issues, there are still some distances from the true implementation of this system,” said Jiang Hao, a member of the Shanghai Political Consultative Conference and the vice president of the Second Intermediate People’s Court of Shanghai. In an interview with The Paper, she and two other committee members, Tao Liping and Pan Jian’an, submitted a proposal on improving the intentional guardianship system at the Shanghai Political Consultative Conference in 2025.
From a legal perspective, Jiang Hao observed that the provisions on intentional guardianship in the Civil Code are mainly based on China’s actual situation and draw on foreign legislative examples. However, the existing legal provisions on intentional guardianship are mostly principle-based and lack specific, procedural, and operable local regulations and supporting systems in implementation. There is also a lack of a clear responsibility list among the various functional entities, making it difficult to implement the relevant provisions of the higher law.
In addition, Jiang Hao believes that the execution of intentional guardianship agreements is currently also not standardized. For example, the rights and obligations of guardians, protected persons, and supervisors are not clear enough, leading to difficulties or even impossibility in fulfilling subsequent agreements. There is also an information barrier between civil affairs,街道（sub-district）,居（neighborhood）committees, courts, real estate registration authorities, etc., which may lead to conflicts over guardianship rights and lead to incorrect guardianship information obtained by relevant functional departments.
The problems discovered by Jiang Hao align with those raised by Jiang Biyan, another member of the Shanghai Political Consultative Conference and the part-time deputy chairman of the Shanghai Municipal Committee of the民进 (China Association Promoting Democracy). In her proposal submitted with 17 other committee members at the 2025 Shanghai Political Consultative Conference, she also highlighted the unclear leading department for intentional guardianship.
“There are many departments involved in its specific implementation, such as civil affairs, politics, healthcare, finance, social work, etc. And there may be many uncertainties during implementation. Who will bear the main responsibility? Therefore, a powerful department is needed to take the lead and strengthen legislation,” said Jiang Biyan. She emphasized that after the establishment of the system, specific implementation details of intentional guardianship will have the momentum and ability to be pushed forward.
Currently, many cities including Shanghai are exploring the implementation of intentional guardianship. Some elderly people will find social organizations to sign intentional guardianship agreements to solve their urgent problems. However, in Jiang Hao’s view, it still happens occasionally that protected persons cannot find suitable guardians; the mechanism for institutions to act as guardians is not yet sound, with missing access standards and supervision standards, and protected persons generally lack the ability to identify their choices. The entire social standardization system has not yet formed in terms of stability and continuity of service provision by organizations.
Both Jiang Hao and Jiang Biyan also mentioned the issue of complex intentional guardianship procedures in their proposals. “The establishment and termination of intentional guardianship agreements are based on the capacity of the protected person. The recognition of capacity involves significant personal rights disposal for the elderly. Intentional guardianship has strong autonomy, agreement, and urgency in special circumstances. The cumbersome process can affect elderly people’s choices for the intentional guardianship system.” Chen Shi and others stated in their proposal to improve the intentional guardianship system.
In response to these issues, two proposals provide suggestions:
Firstly, improve the supporting guardianship system. Establish a special guardianship system as soon as possible to optimize top-level design and build an elderly guardianship system based on family guardianship, supplemented by social guardianship and supported by national guardianship. Clarify responsibility lists, refine norms, establish an elderly intentional guardianship system led by civil affairs departments with the cooperation of judicial and other relevant departments, and formulate duty lists for guardians, protected persons, and supervisors or guidance service standards.
Secondly, standardize agreement construction. Promote exemplary texts of intentional guardianship agreements,预设常见问题并形成协议条款，以弥补制度实施初期各方法律意识和既有经验的不足
