論我國與美國高齡財產管理之法制與實務—以成年監護與信託為中心

Abstract

人類壽命之延長為社會發展與公共衛生的一大成就，然而也為人類社會帶來重重的挑戰。其中高齡者之財產安全乃各國重視的議題之一，蓋高齡者隨著年紀的增長，有相當比例會產生意思能力下降甚至喪失之情形，使其容易受到他人違法不當的操控、詐騙而造成金融剝削。針對此問題，許多先進國家近年積極檢討並建構各種高齡財產管理制度，以保障高齡者之財產安全。而我國目前已屬高齡社會，且高齡人口持續快速增加，高齡者使用各類財產管理機制之需求亦逐年提升，因此如何提升各財產管理制度對於高齡者之適合度，使高齡者之財產確實受到保障，為我國當前必須面對的重要課題。\n本文對於上開議題，首先將透過介紹美國高齡財產管理之法制與實務作為我國重新檢討與比較的基礎，具體內容分為兩部分，第一部分為各財產管理制度之介紹，包括法定監護、自願監護、聯名共有、持續性代理權授與和信託，以及律師為協助高齡者成立有效且適合之財產管理機制，所應採取之初步意思能力判斷流程與律師倫理規範要求律師面對意思能力下降之客戶應遵守之準則；第二部分則針對美國發展成熟的生前高齡信託為介紹，包括可撤銷信託與監護信託。\n在介紹上開內容後，本文將回頭檢視我國高齡財產管理之法制與實務，同樣分為兩部分，其一為各財產管理制度之介紹、遭遇之問題與美國法可提供之借鏡，包括法定成年監護、意定監護、持續性委任契約、聯名帳戶與信託，並檢視我國高齡財產管理規劃實務上，相關專業人員就高齡者意思能力為初步判斷之情形與不足之處，以及美國法上可供參考之借鏡；其二則針對高齡信託之法制與實務為介紹，包括安養信託之規範與發展現況、高齡信託與監護制度之配合、高齡信託目前遭遇之困境、美國可撤銷信託與監護信託適用於我國之可能性。\n整體而論，本文希望透過美國法制與實務之經驗，提供我國改善目前高齡財產管理規劃實務與制度更多元之思考面向，並建構符合我國高齡者需求之高齡財產安全保護網，使其能在財產安全無虞之情況下，享受有品質的老年生活。

The extension of human life expectancy is one of the greatest achievement of social development and public health. Nevertheless, it also brings relentless challenges for human society. Among them, the property security of the elderly is one of the most significant issues for all countries, since the capacity of the elderly tends to deteriorate sharply with their aging, which makes them vulnerable to be illegally manipulated, defrauded, thus leading to financial exploitation. In view of this, many advanced countries have actively engaged in establishing various kinds of mechanism of property management for the elderly in recent years, with the purpose of ensuring the security of their property. Likewise, Taiwan has already become an aging society. With the soaring population of the elderly, their demand for utilizing property management of various types is also surging year by year. As a result, how to enhance the suitability of each mechanism of property management for the elderly to fully secured their property is now a pressing issue that we must address.\nTo tackle these issues, first of all, the thesis will be aimed at the introduction of American legal system and practice of property management of the elderly. Concretely speaking, the first part can be divided into two section. The first section will be focused on the introduction of each mechanism of property management, including guardianship, voluntary guardianship, joint ownership, durable power of attorney and trust. In addition, this section also elaborates the preliminary mental capacity assessment that lawyers need to take in order to help the elder develop an effective and applicable mechanism of property management, as well as the criteria that The ABA’s Model Rules of Professional Conduct requires lawyers to follow when confronted by the clients with declined mental capacity. As for the second section, it will be directed at the introduction of American inter vivos trust, which is maturely developed in this area.\nAfter the aforementioned introduction, this thesis will scrutinize the legal system and practice of property management for the elderly in Taiwan. Similarly, this part can be divided into two sections. The first section of this part not only expounds every system of property management, problems encountered, and enlightenment from American Law, inclusive of legal adult guardianship, voluntary guardianship, durable contract of mandate, joint account and trust, but also gives inspection on the practice of the property management planning for the elderly in Taiwan, the deficiency of the preliminary assessment of mental capacity done by the professional concerned, and lessons from American law. The second section of this part illustrates the legal system and practice of the elder trust, containing the regulation and current situation of the elder care trust, coordination between the elder trust and the guardianship system, the present adversity of the elder trust, and applicability of American revocable trust and custodial trust on the legal system of Taiwan.\nOverall, by gaining experience from the practice and legal system of the United States, this thesis hopes to provide our country with diversified perspectives on the improvement of property management for the elderly, as well as to establish an appropriate guard net for the elderly in Taiwan, so that they can enjoy a quality life in their old age with the security of their property ensured.