What is the Most Effective Safeguard against Abuses of Enduring Powers of Attorney? Cultivating the Idea of the "Best Interest" in a Society

Abstract

We have introduced into Japan the legal system of Enduring Powers of Attorney commonly found in common-law countries (especially, UK) as the contractual form of adult guardianship. The concept of "self-decision" is highly recognized to be fundamental in both systems. However, in our society, the idea of "best interest" has been interpreted according to the "objective" standard, that is, what to be done is decided by the people who have been around the principal and who have cared for her/him. It is more than a mere coincidence that they sometimes can be (and very often are) chosen as attorneys for the principal. It is true that informal decision-makers such as families, close friends, and relatives are normally those who know best about the principal and who care most about her/him, whether or not they are legally appointed as attorneys. However, such practical situation gives rise to certain conflicts. Theoretically, the view of other people should be separated from the view of the principal, which reflects the "autonomy" model of the enduring attorneyship rather than the "paternalism" model. Furthermore, the "paternalism" model is quite often mingled with the "collectivism" model in Japanese society, that is, the bonds of family communities have the paramount value. Respect for "best interest", as a subjective standard, practically provides effective protection from potential abuses, which not only includes intentional but also un-intentional (innocent) deviation from the view of the principal. The recent law reform in the UK demonstrates a mechanism whereby every individual is expected to participate in building up the environment of "best interest", while maintaining good relationships with those close to him/her.