Ningbo Informed Guardianship: Appoint Guardians for Yourself While Awake

What people fear most in this life may not be getting old, but getting old, sick and confused, but there is no one around them who can make decisions for themselves: no one signs if they want to be hospitalized, no one plans if they want to dispose of their property, and they can't even make up their own mind to take any medicine. In fact, the law has long provided a mechanism for advance planning—voluntary guardianship. To put it simply: While you are of sound mind and have full civil capacity, use a written agreement to designate in advance a trusted individual or organization to act as your guardian when you lose, or partially lose, your civil capacity. It’s not a will that specifies how much money will be distributed after death; rather, it addresses the period when you are still alive but no longer able to make your own decisions—namely, who will care for you and make choices on your behalf.

1. What is voluntary guardianship: How does it differ from statutory guardianship and appointed guardianship?

To begin with the conclusion: statutory guardianship means “choosing your own guardian.” The Civil Code places the guardianship system in Chapter 2, “Natural Persons,” of the General Provisions. There are four primary methods for establishing guardianship: statutory guardianship, voluntary guardianship, testamentary guardianship, and appointed guardianship.

Legal guardianship is a system in which the law directly specifies the scope and order of guardians. For adults, Article 28 of the Civil Code stipulates the order: spouse; parents, children; other close relatives; other individuals or organizations willing to act as guardians (subject to the consent of the neighborhood committee, village committee or civil affairs department of the ward's domicile). It is evident that, for adults, the first-order heir is the spouse rather than the parents, which differs from the guardianship of minors. Its Achilles’ heel is its one-size-fits-all approach: if a spouse is elderly and frail, the children are unfilial, or there are no children at all, those in the statutory order of inheritance may not necessarily be reliable.

appointed guardianship means that when there is a dispute over the determination of the guardian, the neighborhood committee, the village committee or the civil affairs department of the ward's domicile is appointed first; if the parties are not satisfied with the appointment, they can apply to the court for appointment or directly apply to the court. Regardless of who makes the designation, the true wishes of the person under guardianship must be respected, and the decision shall be made in accordance with the principle of acting in the best interests of that person. In testamentary guardianship, parents who serve as guardians designate a guardian for their children through a will, primarily to protect minors and adult wards whose parents are still alive.

The defining feature of advance care planning is “I am in control of my own guardianship.” It is established by a fully competent adult, while of sound mind, through prior consultation with a trusted person, who designates their guardian in writing. When the adult subsequently loses or partially loses their capacity for civil conduct, this designated person will assume the duties of guardianship. It is not subject to the legal order of guardianship, who to choose, choose a few, each responsible for what can be agreed on, fully reflect the autonomy of meaning, the effectiveness of the priority over the legal guardianship, so often called "to the future of their own insurance".

Who needs it most? First, elderly individuals living alone or in empty nests: their children are often away—either in other parts of the country or even overseas—so if they suddenly fall ill or become disoriented, even obtaining a signature for hospitalization can become a major issue. Second, there are single-child bereavement families: when their only child tragically passes away, the elderly couple, who are roughly the same age, often finds that if one of them falls ill or passes away first, the other is left unable to care for themselves. Third, middle-aged and elderly individuals who are unmarried, choose not to marry, or are divorced and living alone: they do not have a spouse or children, who would otherwise be the first‑tier statutory guardians. Fourth, same-sex partners: Currently, Chinese law does not recognize same-sex marriage, meaning that partners cannot acquire the status of legal guardian through marriage. However, designated guardianship provides a mechanism within the legal framework for mutual entrustment. In addition, remarried families, individuals with a family history of mental illness, and persons with disabilities requiring long-term care can also make arrangements in advance.

2. Who can serve as a guardian, and how is it agreed upon?

Article 33 of the Civil Code provides: An adult with full civil capacity may, after prior consultation with close relatives, other individuals willing to serve as guardians, or relevant organizations, designate in writing a guardian who shall assume guardianship responsibilities when the individual loses or partially loses civil capacity. Article 26 of the Law on the Protection of the Rights and Interests of the Elderly specifically stipulates that an elderly person with full capacity for civil conduct may negotiate and determine a guardian among close relatives or other individuals or organizations that are closely related to themselves and are willing to assume guardianship responsibilities; the elderly have not been determined in advance If it is determined, the guardian will be determined in accordance with relevant laws at that time. It is evident that the Law on the Protection of the Rights and Interests of the Elderly represents the earliest institutional implementation of voluntary guardianship, and Article 33 of the Civil Code extends this concept from elderly persons to all adults.

This leads to three key points. First, who will "decide"-adults who must have full civil capacity, that is, people who have a clear mind and can judge independently at the moment. If a person has already been adjudicated as having no civil capacity or limited civil capacity, they may no longer enter into an advance care planning guardianship agreement and must instead rely on statutory guardianship or appointed guardianship. Second, who can be chosen-either close relatives (spouses, parents, children, brothers and sisters, etc.), or individuals other than close relatives who voluntarily assume guardianship responsibilities, such as friends, neighbors, former colleagues, and living together. It can also be organizations, such as pension institutions, residents committees, villagers' committees, social organizations or public welfare organizations established in accordance with the law. The scope of selection is significantly broader than that of statutory guardianship and is not subject to any order of priority. Third, how to "decide"-it must be in writing; oral agreements are difficult to fix, and subsequent disputes are almost impossible to prove.

There are also several points in practice that are easily overlooked. First, the guardian should possess “guardianship capacity”; if the prospective guardian is seriously ill, resides overseas for extended periods, or has a clear conflict of interest with the person under guardianship, caution should be exercised. Secondly, it is possible to designate more than one guardian, who may either exercise joint guardianship or divide responsibilities according to specific matters—for example, one guardian oversees daily care while another manages financial affairs and medical decisions—and the order of succession among the guardians may also be specified. Third, whether or not remuneration is to be paid and how expenses are to be reimbursed can both be clearly stipulated in writing, thereby avoiding future litigation over whether the money advanced should be considered valid.

There is such a case in judicial practice: the lonely old man signed a voluntary guardianship agreement with others and handled notarization. Later, the old man recovered sober and I agreed. The court confirmed that the agreement was canceled and ordered the old man to return the expenses of more than 90,000 yuan paid by the guardian before. It is clear that specifying the fees and termination clauses upfront is far more cost-effective than resorting to litigation afterward.

3. What exactly does the agreement say?

It is intended that there is no legal model for the guardianship agreement, but the content is the soul. If you write a specific point, there will be less chance of wrangling in the future. A comprehensive agreement typically covers the following aspects.

First, provide the identity information: clearly state the names, ID numbers, addresses, and contact details of both the ward (the settlor) and the guardian; if there are also a supervisor and a substitute guardian, list them together as well.

The second is guardianship matters, that is, the authority boundary of the guardian, which can be divided into four parts: life care, medical decision, property management and rights and interests protection: life care is daily living, rehabilitation care and living arrangement; medical decision includes whether to be hospitalized, which hospital to choose, operation consent, medication plan and even rescue at the end of the period; property management is the management of deposits, real estate, financial management, social security and pensions and the handling of various procedures.

Third, there are the property management rules, which are the most sensitive and prone to issues. It is recommended to prepare a detailed inventory of assets, specify the guardian’s authority to dispose of substantial assets, and clearly delineate “which matters the guardian may decide independently and which require the written consent of the supervisor or must be documented by a notary public.” Article 35 of the Civil Code has stipulated that the guardian shall perform his duties of guardianship in accordance with the principle of being most beneficial to the ward, and shall not dispose of the property of the ward except for the purpose of safeguarding the interests of the ward.

Fourth, the medical and personal decision clause: in the event that the individual is no longer able to express their wishes, whether to intubate, whether to use a ventilator, and whether to pursue full resuscitation. Incorporating these wishes into a written agreement, and supplementing it with an advance healthcare directive when necessary, can provide guardians with clear guidance when faced with critical decisions in the hospital, while also reducing internal conflict among family members.

Fifth, post‑death arrangements: The agreement may also include provisions specifying how the guardian is to handle funeral matters, the disposition of the remains, and the sorting of personal effects. It should be noted that the distribution of one’s estate after death must be carried out through a will or a testamentary trust agreement; one cannot rely on an advance care directive to dispose of the estate.

Sixth, the supervision mechanism: specify who the supervisor is, how supervision will be conducted, how often the guardian must submit reports, and what measures will be taken to address any inappropriate conduct. The supervisory body is not a mere formality; it is a crucial institutional safeguard against the abuse of power.

Seven are the conditions for entry into force, change, release and termination. Clearly specify when the guardianship duties shall commence (typically upon confirmation, through the agreed-upon procedure, that the ward has lost or partially lost civil capacity), how the guardian may be changed, how the guardianship shall be terminated once the ward regains capacity, and under what circumstances the agreement shall automatically terminate. Article 39 of the Civil Code lists the circumstances under which a guardianship relationship terminates: the ward attains or regains full civil capacity; the guardian loses the capacity to serve as a guardian; the ward or the guardian dies; and other circumstances as determined by the court.

4. What should you do if it "collides" with legal guardianship?

Many people worry: I’ve chosen a guardian, but the statutory order still includes my spouse and children—what happens if these two lists don’t align? The answer is that the designated guardianship prevails. Voluntary guardianship reflects the individual’s own wishes and takes precedence over statutory guardianship; as long as the agreement is lawful and valid, and the guardian is qualified, it shall be implemented in accordance with the terms of the agreement.

TheSegment that is most prone to issues is the “commencement stage”: the guardian’s duties do not come into effect immediately upon signing; they only begin when the ward loses, or partially loses, their capacity for civil conduct. So who is to determine whether someone has “truly lost or partially lost” their capacity? The dispute often hinges on this point: some argue that the elderly person is merely slow-witted due to age, while others contend that they have already become mentally incapacitated—each side holding firm to its own view. In order to avoid deadlock, it is suggested that the activation mechanism should be agreed in advance in the agreement, such as diagnosis by medical institutions at or above the second level, confirmation through judicial appraisal if necessary, or the agreement should be started after joint confirmation by notary institutions and supervisors.

If there is still a dispute, the law gives way. If there is a dispute over the determination of the guardian, it shall be designated by the neighborhood committee, villagers' committee or civil affairs department of the place where the ward has his domicile; if the party concerned is not satisfied with the designation, he may apply to the court for designation or directly to the court. When making a designation, the true wishes of the person under guardianship shall be respected, and the decision shall be made in accordance with the principle of acting in the best interests of the person under guardianship. Before the designation is completed, if the rights and interests of the person under guardianship are left unprotected, the residents’ committee, villagers’ committee, or civil affairs department of the person’s place of residence shall serve as the temporary guardian. It is evident that even in cases where “no one is in charge,” the law still provides a fallback provision.

If you want to reduce conflicts from the source, you can do three things: write the starting conditions and identification methods into the agreement; introduce supervisors and handle notarization if necessary; communicate with close relatives in advance and explain the arrangement and reasons clearly. Many disputes are not legal conundrums but rather misunderstandings arising from information asymmetry.

5. Supervision and Revocation: How to Prevent Guardians from Misconducting Themselves

Even the most trustworthy individuals may change under the strain of long-term caregiving or in the face of financial incentives; therefore, in addition to “choosing the right people,” it is equally important to “manage them effectively.” Article 35 of the Civil Code draws a bottom line: the guardian shall perform his guardianship duties in accordance with the principle of being most beneficial to the ward, and shall not dispose of the property of the ward except for the protection of the interests of the ward; the guardian of an adult shall perform his guardianship duties to the greatest extent possible Respect the true wishes of the ward, protect and assist them in the implementation of civil legal acts that are compatible with their intellectual and mental health. In other words, the guardian “assists” rather than “replaces” the ward.

If a guardian exceeds their authority, the law provides for “revocation” as a safeguard. Article 36 of the Civil Code stipulates that if a guardian has one of the following circumstances, the people's court shall, on the application of the relevant individual or organization, revoke his guardian qualification, arrange necessary temporary guardianship measures, and appoint a guardian in accordance with the law in accordance with the principle of being most beneficial to the guardian: first, to carry out acts that seriously damage the physical and mental health of the guardian; second, to neglect to perform guardianship duties, or unable to perform the duties of guardianship and refuse to entrust part or all of the duties of guardianship to others, resulting in the ward being in a state of danger; the third is to carry out other acts that seriously infringe upon the legitimate rights and interests of the ward.

The subjects who have the right to apply for revocation are quite extensive: other persons who have the guardianship qualification according to law, such as residents' committees, villagers' committees, schools, medical institutions, women's federations, disabled persons' federations, minor protection organizations, elderly people's organizations established according to law, civil affairs departments, etc., can all apply to the court. The law also includes aBottom-line guarantee provision: if organizations other than individuals and civil affairs departments fail to apply in a timely manner, the civil affairs department shall file an application with the people’s court. This means that even if the relatives remain collectively silent, public authorities will still intervene.

In addition to the cancellation afterwards, the more important thing is to take precautions in advance: set up a guardianship supervisor and listen to the report regularly; keep the property of the ward separately from the guardian's own property and keep the account independent; agree that the large amount of expenditure needs the written consent of the supervisor; notarize or keep written records for the disposition of major property such as real estate and equity.

6. Handling Path and Practical Operation List

Turning a planned guardianship arrangement from an idea into a practical, implementable plan generally involves several steps.

The first step, self-examination conditions: confirm that you are an adult with full capacity for civil conduct, clear mind and true meaning; confirm that the guardian to be selected is willing to undertake and has the actual ability to perform responsibilities; check whether there is an obvious conflict of interest between the two parties.

The second step, consultation: consult with the notary office or the public legal service center, explain the family situation, property status and real demands clearly, and let the professionals help you to judge who to choose and how to write.

The third step, drawing up the agreement: write it one by one according to the modules of identity information, guardianship matters, property management, medical decision, arrangement behind, supervision mechanism, effectiveness and dissolution, etc., and try to be specific and executable. The list of property and certificates can be made into attachments.

Step 4: Consider whether notarization is necessary: The law does not mandate notarization for voluntary guardianship; however, in practice, obtaining a notarized guardianship agreement is more conducive to safeguarding the rights and interests of the person under guardianship.Notarization can examine whether the contents of the agreement are legal, whether the parties are voluntary, and fix the mental state and true meaning at the time of the contract. It is more probative when questioned in the future. Notarization documents are highly preserved and convenient for subsequent use.

The fifth step, supporting arrangement: it is determined that the guardianship solves "who is in charge when alive" and the will solves "how to divide the property behind". The two are partners rather than substitutes, and it is better to sort them out together.

The sixth step, safekeeping and notification: the original agreement should be properly kept, and it is suggested that the supervisor and the notary institution should keep one copy respectively; the close relatives or trusted people should be informed appropriately to avoid being unknown in the future.

7. these misunderstandings must be avoided

Misconception 1: Does a designated guardianship agreement equate to a will? The two are entirely different. A will is a "unilateral" act, the testator dies before it takes effect, and it is in charge of how the estate is distributed; it is intended that guardianship is an agreement between the "two parties" and takes effect after signing (guardianship duties begin to be performed when the guardian loses or partially loses civil capacity), and it is in charge of who takes care of and who makes the decisions when the person is still alive. If you want to arrange your post‑death assets, you’ll need to draw up a separate will.

Misunderstanding 2: It is intended that guardianship is equal to legacy support agreement? Legacy support agreement is "paid and double service": the dependant undertakes the obligation of birth, death and burial, and the dependant bequeaths the property to the dependant; the dependant must be an organization or individual other than the heir. The core of statutory guardianship lies in the “guardianship duties”; it does not require the receipt of property as consideration, and the guardian may be a close relative without being obligated to leave you any property. The two can coexist, but they cannot substitute for one another.

Misunderstanding 3: purposeful guardianship is equal to agency? Agency is the entrustment authorization issued on specific affairs, the scope is usually limited, and the agent can withdraw it at any time; purposeful guardianship is a kind of continuous care relationship covering personal and property affairs, with the loss of ability as the trigger point, which is closer to the identity arrangement in nature.

Misunderstanding 4: Only the elderly can do it? The Law on the Protection of the Rights and Interests of the Elderly does stipulate the voluntary guardianship of the elderly at the earliest, but Article 33 of the Civil Code has extended it to "adults with full capacity for civil conduct", and young and middle-aged people can do the same. It’s actually easier to find the right person and negotiate favorable terms when you’re young and clear-headed.

Misunderstanding five: must be notarized, must be approved by the court to be effective? The law only requires "written form", there is no compulsory notarization, and there is no need for court approval. Notarization is an additional measure that enhances effectiveness, but it is not a prerequisite for validity.

8. Frequently Asked Questions

Question: I have neither children nor a spouse—can I still set up an advance care directive? Yes, you can. It is intended that guardianship is precisely for this kind of people to solve the problem of "no one to trust". You can choose friends other than close relatives, people who live together, or organizations such as neighborhood committees, village committees or pension institutions.

Question: Can I specify multiple people at once? Yes, you can. It can not only agree on joint performance, but also on the division of labor according to matters. It can also agree on the order. When the current one cannot perform his duties, the latter one will make up for it.

Question: Can a cohabiting partner serve as a guardian? Yes, they can. If the partner does not belong to a close relative, he can be selected as "other individuals willing to act as guardians", which is also a realistic path for many non-marital cohabitation and same-sex couples to safeguard each other's rights and interests.

Question: Does establishing an advance care directive for guardianship affect inheritance? It does not have a direct impact. Inheritance is still handled according to will or legal inheritance; it is intended that guardianship only resolves who will take care of and make decisions during the period of incapacity, and does not change the ownership of the estate.

Q: Can it be changed after signing? Yes, it can. Before the ward has lost civil capacity, the ward may, in consultation with the guardian, modify or terminate the guardianship; once terminated, the guardian may seek reimbursement for any reasonable expenses advanced during the guardianship period.

Question: Can guardians charge a fee? It is to be agreed upon by both parties. It can be provided free of charge, or a compensation and expense-reimbursement arrangement can be agreed upon; clarifying the terms in writing is more efficient than leaving them vague.

9. Practical Insights from a Lawyer

Voluntary guardianship is most often delayed, because many people feel they are still mentally sharp and see no urgency. However, from the experience of handling cases, it is often too late to talk about guardianship when diseases or accidents come. At that time, I may not be able to express my meaning clearly, and who is in charge becomes the starting point of quarrels between family members. Therefore, the first thing is to think clearly about the candidates and matters when you are fully awake: don't just look at the relationship, but also see whether the other party is reliable, has the energy, and is willing to undertake specific affairs. If necessary, you can designate multiple people to divide the work., Give life care, medical decisions, and property management to different people.

In practical terms, the agreement’s provisions must be specific enough to be enforceable, rather than vaguely stating that “someone shall serve as my guardian.” It is safer to write down the conditions for entry into force, the boundaries of various duties, the handling of major expenditures, the authority to sign for medical treatment and hospitalization, and the arrangement for the disclosure of regular reports and accounts, as well as to agree on supervisory candidates to prevent guardians from abusing their authority. The agreement shall be in written form, with signatures and dates retained as far as possible, and notarized if necessary to enhance the effectiveness of the evidence. What needs to be reminded is that it is intended to be custody after one loses one's capacity to act, which is different from the distribution of property behind the will. The two should be arranged separately and not mixed in one copy.

There is also a frequently overlooked aspect: conflicts with the legal guardian. If the guardian appointed by oneself is inconsistent with the legal person such as spouse and children, the meaning of the choice can be fixed in advance and let the family know, which can reduce future disputes. Once the guardian is found to be negligent in performing his duties or infringe on his rights and interests, interested parties can also apply for change according to law. It is much more active to spend half a day straightening out the agreement and keeping the supervision and withdrawal mechanism while awake than to have others fight for your custody afterwards. This is also the real value of arranging in advance.