1. What is a guardianship declaration?

• If a person has a mental disorder or other cognitive impairment and is unable to communicate with others or understand their expressions—such as in cases of long-term coma, vegetative state, severe intellectual disability, or mental illness—an application may be filed with the court for a guardianship declaration.
• At that point, the person under guardianship becomes legally incapacitated. The court will appoint a guardian to act as the legal representative and will also designate another appropriate person to jointly prepare an inventory of the ward’s property with the guardian.
   

2. What are the consequences of not applying for a guardianship declaration?

• If a person’s capacity to understand or express intent is severely impaired, a guardianship declaration should be made.
• If the court has not yet issued a formal ruling, but the person’s seal is still used in their name to withdraw, use, or transfer assets, legal risks may arise.
  • From a criminal perspective, such actions may constitute offenses such as forgery and embezzlement.
  • From a civil perspective, questions may arise regarding whether the transfer was legally authorized, the mental state at the time of authorization, and whether it truly reflected the person’s intent. If no authorization existed, it may be difficult to determine whether the assets were used for the benefit of the person or whether the actions were appropriate. In litigation, it is often difficult to provide sufficient evidence, making disputes more likely.
• Therefore, when family relationships are strained or there are doubts about an elder’s mental capacity, it is advisable to retain documentation for any asset transactions and to apply for a guardianship or assistance declaration in accordance with the law to minimize future disputes.
   
   

4. If a property inventory is not submitted, the guardian may not dispose of the ward’s property.

• According to Article 1099, Paragraph 1 of the Civil Code: “At the commencement of guardianship, the guardian shall, together with a person designated by the will, appointed by the local municipal or county (city) government, or designated by the court, prepare an inventory of the ward’s property within two months and submit it to the court.”
• According to Article 1099-1: “Before the property inventory is completed and submitted to the court as required in the preceding article, the guardian may only perform acts necessary for the management of the ward’s property.”
• In summary, the guardian must, within two months after the guardianship ruling, prepare a property inventory together with the designated person and submit it to the court.
• If the property inventory is not submitted, the guardian is limited to necessary management actions and may not dispose of the property.
   

5. What does “disposition of property” mean?

• Any act involving the sale or other transactions concerning property owned by the ward is considered a disposition.
• The Civil Code provides that a guardian must obtain court approval to dispose of real estate.
• Therefore, if the property inventory has not been submitted, the guardian may not dispose of the property, and the court will not approve any disposition of real estate.

6. Reminder