[Notary Across from Seoul Family Court] Haven't Notarized Your Guardianship Contract Yet?

Voluntary guardianship contracts, notarized wills, and notarized declarations of inheritance forfeiture are notarizations that must be prepared in advance, while your mental capacity is still fully intact.

"What if my guardian disposes of my property however they like?" "What if my guardian sells my house or empties my bank account?"

A notarized guardianship contract lets you designate, in advance, a guardian who will manage your property and protect your personal welfare should your ability to handle your own affairs decline in the future due to illness, old age, or other reasons.

Accordingly, as long as you can still handle your own affairs normally, the guardian cannot manage your property.

Moreover, even if your ability to handle your affairs later declines, the guardian gains authority to manage your property only after the Family Court appoints a guardianship supervisor.

Some people mistakenly believe that a guardian obtains the power to manage or interfere with their property the moment the contract is signed, but this is not the case.

What Is a Guardianship Contract?

Guardianship contracts are governed by Article 959-14(1) of the Civil Act. A guardianship contract is an agreement in which a person who lacks, or is expected to lack, the capacity to handle their affairs due to mental limitations caused by illness, disability, old age, or other reasons entrusts all or part of the affairs concerning their property management and personal welfare to another person and grants that person the authority to act on their behalf in those affairs.

Put simply, it is a system for agreeing in advance: "If I later find it difficult to make decisions, I want this person to manage my property and look after my personal welfare on my behalf."

Here, "a situation where one lacks the capacity to handle affairs due to mental limitations" means a state in which decision-making or judgment is impaired. It does not refer simply to physical discomfort; rather, it applies where, due to a decline in brain function or cognitive ability, a person has difficulty properly understanding the meaning of legal acts such as managing property or entering into contracts.

Therefore, even if your ability to handle your affairs is somewhat diminished, as long as you have the "minimum mental capacity" to understand and decide whom you are entrusting with which affairs, you can enter into a guardianship contract through notarization. However, if your capacity is so impaired that you cannot recognize the meaning of the contract itself, a notarized guardianship contract is not possible.

Why Should You Do It "Now"?

A guardianship contract can be concluded only while you still have the capacity to handle your own affairs. Although the contract takes effect later, the act of entering into it must take place while you have full judgment.

During consultations, we are often asked: "My mother has been diagnosed with dementia. Can we still put a guardianship contract in place now?"

It is not automatically impossible in such cases, but your mother must have at least the minimum mental capacity to understand the contract and decide whom she is entrusting with which affairs. Because family disputes may arise later, we have no choice but to strictly verify her cognitive condition, for example through a physician's medical certificate, before proceeding.

In other words, a notarized guardianship contract is not something you can "do whenever it becomes necessary" but something that, "if you don't do it while you still can, you may never be able to do." In this respect, it resembles notarized wills and notarized declarations of inheritance forfeiture.

Signing the Guardianship Contract Is Not the End

One point that is easy to overlook when preparing a guardianship contract is that drawing up the notarial deed is not the end. The process consists of three main stages.

The guardianship contract takes effect only when the Family Court appoints the voluntary guardianship supervisor (Article 959-14(3) of the Civil Act). Drawing up the notarial deed is merely the first step in this long process.

What Difference Does Preparing in Advance Make?

If a guardianship contract has been registered, the Family Court may issue a ruling of adult, limited, or specific guardianship only where it is especially necessary for the person's interests, and only upon petition by the voluntary guardian or the voluntary guardianship supervisor. In other words, voluntary guardianship takes precedence over statutory guardianship (Article 959-20(1) of the Civil Act).

Conversely, if your judgment declines without a guardianship contract in place, your family must petition the Family Court to commence adult or limited guardianship, and the guardian will be appointed by the Family Court rather than chosen by you. It is not uncommon for someone you never expected, rather than a person you trusted, to be appointed as your guardian.

However, not just anyone can become a voluntary guardian, and becoming one does not guarantee that the position will be kept.

If the voluntary guardian falls under any subparagraph of Article 937, has committed serious misconduct, or is otherwise unsuitable for the duties set out in the guardianship contract, the Family Court may decline to appoint a voluntary guardianship supervisor.

Even after a voluntary guardianship supervisor has been appointed, if the voluntary guardian commits serious misconduct or otherwise becomes unsuitable for the duties, the Family Court may dismiss the voluntary guardian upon petition by the voluntary guardianship supervisor, the person, a relative, a prosecutor, or the head of a local government.

In short, even after being appointed, the voluntary guardian remains under the continuous oversight of the voluntary guardianship supervisor.

Civil Act Article 937: Grounds for Disqualification of Guardians

Documents Required to Draw Up the Notarial Deed

A Guardian's Authority Is Not Unlimited

A guardian manages property on behalf of the ward, but that authority has built-in brakes from the start.

Where there is a guardianship supervisor, the guardian must obtain the supervisor's consent before doing any of the following (Article 950(1) of the Civil Act).

1. Acts relating to business operations
2. Borrowing money
3. Acts that impose only obligations
4. Acts intended to acquire, lose, or change rights to real estate or other important property
5. Litigation
6. Acceptance, qualified acceptance, or renunciation of an inheritance, and agreements on the division of inherited property

In other words, a guardian cannot decide alone on acts that significantly affect your property, such as selling your house or other important real estate or borrowing large sums of money.

Nor can a guardian begin managing your property immediately just because a guardianship contract has been notarized.

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