Continent of the Humanities

New Rules for an Ageing Society

By Makoto Arai

Rising Japanese life expectancy is creating new challenges for the country's legal system. A new guardianship system based on German experiences is designed to allow dignified and selfdetermined ageing.

A century has passed since 1906, when German Alois Alzheimer first discovered the condition that was to be named after him. The various types of dementia, including Alzheimer's disease, have since become a pressing issue in modern Japanese society, as well.

Japanese society is ageing rapidly. By 2015, the first Japanese babyboomer generation will reach retirement age. Approximately 17 million out of the 120-million population will then be seniors, a third of whom will live alone. A decade later, the population of over 65-yearolds will peak at 35 million. The number of older dementia patients will skyrocket to 2.5 million per year by 2015, up from an estimated 1.7 million today. It is a development that challenges not only Japanese society, but also its legal system. 

For a long time, the Japanese Civil Code has governed the protection of seniors with dementia and patients with mental handicaps or psychological disorders. The law was equivalent to the German concept of legal incapacitation and was designed primarily to protect family assets, when it was introduced a hundred years ago. The traditional law, that never really functioned properly, was replaced in April 2000 by the new adult guardianship law. Its intention is to allow the handicapped to continue their lives as normally and as free of discrimination as possible. It is based on a paradigm shift: instead of protecting by taking away rights, it empowers patients without stripping them of their abilities. Another objective of the law is to make preventive provisions while the patient still possesses his or her full mental faculties. The law also addresses financial protection, both in terms of assets and of maintaining independence and quality of life

Since the guardianship law was introduced seven years ago, legal guardianship has been claimed in 67,215 cases (see box below) and voluntary guardianship in 14,938 cases, very few of which involved seniors with dementia. By contrast, more than 1.2 million out of the 82 million Germans have made use of the country's guardianship law since its introduction 15 years ago, earning the country the nickname "republic under guardianship". Red tape in the application process and a general reluctance to accept formal regulation of this issue explain the disparity between Germany and Japan. In addition, the law still tends to define adult guardianship as a family matter. There is an urgent need to build awareness that the problem of guardianship pertains to society as a whole. Japan can learn from Germany on the subject. Science can help in this learning process, for example by disseminating relevant literature, such as the writings of lawyer Hans F. Zacher, which the author of this article has translated into Japanese.

Legislature reacted in April 2006 by passing two new initiatives. After a revision of long term care insurance laws, approximately 5,000 regional comprehensive support centres were created throughout the country. They offer mainly flexible, individualised care services and educate the public about the guardianship system. Moreover, a law for the prevention of violence against seniors has come into eff ect. It regulates the citizens' as well as the authorities' responsibilities at the national and local levels, with a defined goal of increasing usage of adult guardianship by these authorities.

The Japanese word for guardianship, Koken, stems from the Japanese theatrical concepts of No, Kyogen, and Kabuki. In Kabuki, the Koken's job is to support the actors in dramatic battle scenes or dance. Dressed all in black, he assists the actors onstage. The guardian in today's Japan, however, has become much more than an invisible helper. In our rapidly ageing society, he takes centre stage.

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Makoto Arai Makoto Arai

Professor Dr. Makoto Arai teaches law and is dean of Tsukuba University Law School in Tokyo, Japan. He was a Humboldt Research Fellow at Munich University from 1991 to 1993. In 2006, he received the Humboldt Research Award, taking him to Munich to carry out a collaborative project at the Max Planck Institute for Foreign and International Social Law. Arai is the President of the Japan Adult Guardianship Law Association.

The new guardianship for adults

Adult guardianship differentiates between legal and voluntary guardianship. Traditional legal guardianship is a retroactive measure. After legal incapacitation, a legal guardian is determined at the request of the parties concerned. The new voluntary guardianship, however, emphasises the right to self-determination. It allows the person concerned to declare his or her will concerning a future guardianship while still fully mentally capable.

Today, voluntary guardianship is given preference over legal guardianship, a tendency that can be observed worldwide. Germany, with its guardianship law of 1992, abolished traditional legal incapacitation. The Japanese law was influenced by both the German Betreuungsgesetz and the British Enduring Powers of Attorney Act of 1985.

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