Protecting the mentally disabled under Japanese civil law

Another legal tidbit courtesy of the mini-library by my desk.

Under the Japanese civil code, there are three systems for supervising and legally protecting the mentally infirm. Each is imposed by a family court following a petition from the individual’s family, a prosecutor or an existing legal guardian.

The guardian (後見人 koukennin)

Guardians are appointed for the most profoundly disabled individuals: those who have completely lost their ability to reason due to mental illness. Once a person is under guardianship, the guardian becomes their legal agent and can transact business on their behalf. The disabled person becomes completely incompetent for most legal purposes: any transaction they enter, outside of basic daily activities like buying groceries, can be voided at the person or guardian’s discretion. A person under guardianship remains free to enter major transactions of a personal nature, such as getting married or acknowledging paternity of a child.

As in English, the same word is used to refer to non-parents who have legal custody of a minor. Minors have more legal authority (for the most part) than adults with guardians, so legal literature often differentiates between seinen koukennin (adult guardians) and miseinen koukennin (minor guardians).

The curator (保佐人 hosanin)

Curators are appointed in less extreme cases, where a person retains some ability to reason, but where their illness significantly impairs that ability. A person under curatorship can still engage in binding transactions on their own, but they need the curator’s consent to make major binding decisions, such as real estate transactions. Unlike a guardian, a curator cannot act independently on the disabled person’s behalf unless the person specifically requests or consents to it. Think of Dick Cheney and the concept should be pretty clear.

The assistant (補助人 hojonin)

Assistants are appointed where the subject’s ability to reason is impaired, but not to the extent which would justify a curator. Unlike the other two systems, assistance is voluntary and can only commence with the disabled individual’s consent. Otherwise, the system resembles curatorship, in that the person needs their assistant’s consent to make major binding decisions, but is otherwise free to transact business as usual.