An adult’s guardian follows the statutory order; if the ward harms someone, the guardian pays

After an adult loses capacity, guardians follow this order: spouse; parents and children; other close relatives; last, other persons or organizations agreed to by the residents’ committee and the like. Disputes are designated by the residents’ committee, villagers’ committee, or civil affairs; disagree and go to court. While clear-minded, a person may name a future guardian in writing. If the ward harms someone, pay first from the ward’s own money; the guardian covers the shortfall.

Cost

No money. If there is a dispute, go to the residents’ committee, villagers’ committee, civil affairs, or the court.

Benefit

Article 28 of the Civil Code (民法典): for an adult with no civil capacity or limited civil capacity, the following persons with guardianship capacity serve as guardian in order: “(1) spouse; (2) parents, children; (3) other close relatives; (4) other individuals or organizations willing to serve as guardian, but subject to consent of the residents’ committee, villagers’ committee, or civil-affairs department at the ward’s domicile.” Article 31: if there is a dispute over who the guardian is, the residents’ committee, villagers’ committee, or civil-affairs department at the ward’s domicile designates; anyone who disagrees with the designation may apply to a people’s court for designation, or apply directly to a people’s court. Designation “shall respect the ward’s true wishes and follow the principle most favourable to the ward.” Before designation, if rights and interests are unprotected, the residents’ committee, villagers’ committee, a relevant organization provided by law, or civil affairs serves as temporary guardian. Article 33: “An adult with full civil capacity may, in advance and in writing, agree with close relatives or other individuals or organizations willing to serve as guardian on who their guardian will be.” Article 1188: “If a person with no civil capacity or limited civil capacity causes harm to another, the guardian bears tort liability. If the guardian has fulfilled guardianship duties, tort liability may be reduced.” If the person has property, compensation is paid from that property; the shortfall is paid by the guardian. Article 1189: if the guardian entrusts guardianship duties to another, the guardian still bears tort liability; the trustee who is at fault bears corresponding liability (nationwide, in force from 1 January 2021)

Notes

Article 33 is voluntary guardianship. Naming someone in writing while the person is clear can avoid most later disputes; how to draft it is in Section 17, item 1 (voluntary guardianship). Watch the compensation paragraph: handing the person to a care facility or relatives, liability stays with the guardian; the trustee only shares corresponding liability when at fault. So guardianship-liability insurance for the ward can make sense. Article 78 of the Mental Health Law (精神卫生法) also provides that a guardian who abandons a patient or fails to perform guardianship duties and causes harm bears liability for damages by law.

Sources · 1

1. 中华人民共和国民法典（第二十八条、第三十一条、第三十三条、第一千一百八十八条、第一千一百八十九条）. flk.npc.gov.cn/detail?id=ff808081729d1efe0172…