Guardianship Law Research Articles

Child Separation and the Stolen Generation of Brazil: Indigenous Peoples’ (Un)Freedom in Amazonia

Abstract This article examines questions pertaining to Indigenous people’s citizenship status, the problematic definition of orphanhood, rule of law, and structural racism in Brazilian society. The definition of orphanhood was articulated in a way that allowed for the extralegal abuse and racialized exploitation of labor to continue long past the legal end of Indigenous slavery (1755). Indigenous persons’ legal status, the definition of orphanhood, and guardianship laws worked together to legitimate the permanence of child separation as a means for wealthier Brazilians to get free child labor. The article uncovers the ambiguities in defining Indigenous people’s legal status, making citizenship status a subjective determination contested on a case-by-case basis. With this foreground understanding, the article presents the practice of child separation and the created discourse to legitimize Indigenous, Black, and mixed-race children as unpaid criadas de casa (housemaids).

Improving contraceptive care for minors in Israel: practice, policy, and training gaps among OBGYNs

BackgroundSexually active adolescents sometimes seek contraceptives without parental consent, posing challenges due to minors' confidentiality and consent regulations. This is especially the case under the un-nuanced Israeli legal scheme regarding adolescents' care.MethodsIsraeli OBGYNs were contacted through mailing lists and social media groups and asked to fill an online questionnaire regarding their experience and protocols concerning prescription of contraceptives to minors. They were also asked about their comprehension of the relevant legal obligations, the importance they ascribe to different ethical interests and considerations, as well as their training.ResultsOf the 177 responding gynecologists, 132 (74.58%) consulted minors about contraceptives during the past year, regardless of a vast lack of training on providing care to minors. More than a third of respondents believed that there is no legal requirement to involve parents in the process, and only 8% assumed a legal obligation for parental involvement in all minors under the age of 18. Three quarters would "almost always" prescribe contraceptives without parental knowledge, if requested, while 20% never would. No correlation was found between respondents' practices and their perception of the relevant legal obligations. Participants agreed that the risk to the health of the minor as a result of having sex without contraceptives is of utmost importance. Yet, those willing to prescribe gave greater weight to this consideration, while those who do not prescribe were more concerned with the legal ramifications of such an act. The majority identified the age of 15 as the threshold for consistently prescribing contraceptives to minors without parental involvement.ConclusionThis study highlights the significant gaps in both the legal framework and the training of Israeli OBGYNs, and further supports confidential prescription of contraceptives to minors 15 years and older, via Article 6 of the Israeli Legal Competence and Guardianship Law. Legislative reform, professional guidelines and education and training programs are all needed to ensure consistent and legally sound practices, that safeguard the health and rights of minors. It is imperative to guide healthcare providers, including OBGYNs prescribing contraceptives to minors, on managing the care of minors refusing parental involvement, clarifying the legal framework and ethical considerations involved.

Necessity of Da’wa Communication for Reformation in Muslim Guardianship Laws in India

Necessity of Da’wa Communication for Reformation in Muslim Guardianship Laws in India

Guardianship Law in India: Examining the Principle of ‘Best Interests’ of Minors and the Rights of Single Mothers as Sole Guardians

Guardianship Law in India: Examining the Principle of ‘Best Interests’ of Minors and the Rights of Single Mothers as Sole Guardians

Ochrona dobra dziecka w postępowaniu cywilnym - uprawnienia i obowiązki procesowe dotyczące małoletniego w postępowaniu nieprocesowym

The subject of the privileges and obligations of a minor in non-trial proceedings is still not sufficiently studied in the Polish procedural law doctrine. The protection of the welfare of the child, which should be embodied in the laws and the practice of justice, still requires numerous changes and refinements. The planned amendment to the Family and Guardianship Code and some other laws emphasizes the need for reforms in Polish legislation, proposing amendments to several legal acts in order to raise the standards of minors' participation in court procedures, strengthen their protection, including systemic protection from harm. The purpose of this paper is to collect and describe the main duties and rights of the child in non-trial proceedings, and to show how the cited regulations implement the protection of the child's welfare. Minors are participants in proceedings with special needs, so the justice system should be ready to accommodate them, providing them with decent conditions and taking into account their individual situation. On the basis of the analysis of the literature and case law in the field of civil procedure, civil law and family and guardianship law, certain deficiencies in the existing mechanisms were shown and the inadequacy of civil procedure institutions responsible for protecting the welfare of the child was exposed. Polish legislation requires such regulations that will allow the formation of a smoothly functioning system of protection of minors.

Analysis Action to Protect Juvenile Delinquents in Portugal and the Written Work of Father António D’ Oliveira (1867-1923), On the Centenary of His Death

This year we celebrate the Centenary of the death of Father António d' Oliveira (1867-1923), who was a pedagogue dedicated to the protection of children, mentor of the Child Protection Law of 1911, with which the Guardianship Law of Minors began in Portugal. The objectives of this historical-described and documentary research are inherent to the three established objectives, resulting from our hermeneutic approach to his written work: analyzing the texts hermeneutically and in terms of organizing their content; interpret some content ‘evidence’ from a (socio)pedagogical and social pedagogy perspective; analyze, based on father Oliveira's thinking, the protection and re-education of childhood, with reference to the Child Protection Law, of May 27, 1911, which initiated the guardianship rights of minors in Portugal until the end of the last century. In conclusive terms, we will summarize a set of ideas, which should be included in the History of Education and/or Social History of Portuguese Childhood, in this celebration and fair tribute to this social pedagogue.

An Analysis Of Marriage Guardianship Provisions In Somalia And Indonesia: A Comparative Study Of Somalia Family Law And Indonesian Islamic Law

Indonesia and Somalia are both categorized as nations with a predominant Muslim population following to the Shafi'i Madhab (school of thought). However, despite this similarity, there are notable distinctions in the Islamic family law rules and their enforcement between the two countries. An important distinction is in the divergence of marriage guardianship regulations between Indonesia and Somalia. In Indonesia, marriage guardians are mandatory and considered an essential component of the marriage process, whereas in Somalia, the opposite is genuine. In Somalia, a marriage guardian is not mandatory for marriage. This comparative phenomenon is quite distinctive and warrants further in-depth study. Despite both countries are followers of the Shafi'i school of thought in Islam, their respective applications of Islamic Family Law differ significantly. This study employs the library research method, specifically utilizing a Normative Juridical approach. Ultimately, the variations in marriage guardian legislation between these two nations can be attributed to socio-historical disparities and devotion to different schools of belief by their respective populations. In Indonesia, guardianship law follows the Syafii school of thought, which is in line with the beliefs of the majority of the population. Conversely, Somalia's law is based on the Hanafi school of thought, which emphasizes gender equality and justice in all legislation.

Voluntary Guardianship Notarization: China’s Legal Remedy to Support Self-determination and Decision-making for Incapacitated Older Adults

In lieu of a comprehensive adult guardianship law, voluntary guardianship notarization has become the main route to support the self-determination, autonomy, and decision-making of incapacitated older adults in China. This article is a first attempt to provide an overview of recent developments and current forms of voluntary guardianship notarization initiatives in mainland China. Besides highlighting the difficulties and challenges faced by the country, this article also outlines the types of guardians under the current legal framework, identifies the social functions of the notary office in adult guardianship socialization, and sets out the emerging initiatives to support decision making for incapacitated older adults.

PSYCHOLOGICAL AND PSYCHOTHERAPEUTIC INTERVENTION IN YOUNG PEOPLE AND ADOLESCENTS WITH SEXUAL HARASSMENT BEHAVIOR

Sexual harassment behaviors, using strategies of coercion, harassment and sexual intimidation, violate people's sexual freedom and are crimes punishable in accordance with current legislation. Criminal liability begins at age 16; Acts carried out up to this age, punished by law as crimes, fall under the jurisdiction of the Educational Tutelary Law, resorting to non-criminal, but liability measures. It is important to understand the extent to which cognitive distortions and empathic deficits influence sexual behavior and strategies used by the aggressor. The research typology consists of a case study; whose object of study involves a 15-year-old male teenage aggressor, who practiced sexual harassment and committed a crime of coercion, harassment and sexual intimidation of a 14-year-old teenager, with the educational guardianship law being applied with assessment measures and psychological support for 14 months. The objective is to promote changes in behavior and attitudes based on awareness and understanding of situations in which they acted in accordance with wrong beliefs. The methodology involves psychological interviews and observation in the assessment of the aggressor and cognitive-behavioral therapy in psychotherapeutic intervention. The results reveal dissonances in the discourse, signs of cognitive distortions and empathetic deficits regarding the exercise of sexuality, based on beliefs arising from sub-cultural patterns of the surrounding environment. Psychological intervention of a psycho-educational and psychotherapeutic scope ensured a change in behavior and attitudes, registering an adjustment of individual sub-cultural standards to the universal collective standards in force in the exercise of citizenship in relation to sexuality in intimate relationships.

Guardianship law - status quo after the amendment of 2023

Guardianship law - status quo after the amendment of 2023

Aging and the Law in Singapore and Japan: Adult Guardianship and Other Alternatives

ABSTRACT Comparative adult guardianship law and other alternatives, especially in an Asian context, is an under-investigated area. This paper attempts to fill the gap in the literature by comparing the adult guardianship law and other alternatives from the perspectives of Singapore and Japan. The central argument of this paper is that in order for the law of adult guardianship to be widely adopted in Asian societies like Singapore and Japan - where much of adult guardianship related issues are governed by informal familial arrangements; this would require governments to do more than the mere enacting of adult guardianship legislation. To encourage widespread adoption, governments must embark on a robust public awareness campaign to promote the adult guardianship scheme, provide institutional support, and simplify the process for people wishing to sign up to the scheme and enact the appropriate safeguards against abuse. Such conditions are present in Singapore, whereas in Japan, these are lacking which explains the lower take-up rate with Japanese people preferring informal arrangements. Another key difference between Singapore and Japan is that the former relies primarily on family and relatives to act as adult guardians, while the court in the latter jurisdiction insists on the appointment of professionals like lawyers to act as adult guardians. It is surmised that this factor explains the lower take-up rate of formal adult guardianship in Japan as compared to Singapore due to the costs involved in engaging professional guardians. This paper also explores the alternatives to adult guardianship in both systems. Alternatives to formal adult guardianship is important because there will be a substantial portion of the population of older adults who would prefer these alternatives for various reasons.

A Gender-Based Maqashid Sharia Study of Penghulu in Indonesia (A Study of Jasser Auda's Views)

The Penghulu in Indonesia has always been identified and held by men instead of women. The legal opportunity in Ministry of Religious Affairs Regulation No. 20/2019 on Marriage Registration has been annulled by Compilation of Islamic Law (KHI), which requires men as guardians, where the existence of marriage guardians is one of the duties of the head of the family, which inhibits women from serving as head of the family. Although fiqh as the main source of KHI has given legality to women as marriage guardians, KHI does not adopt arguments in favour of women becoming marriage guardians. Whereas the duties of the penghulu are not only limited to wali hakim, there are many duties of benefit in marriage such as providing legal certainty through marriage registration. This article aims to find out the existence of female headmen in Indonesia in the perspective of maqashid sharia. The research employs a literature content analysis. The results showed that based on the study of the six features of maqashid sharia proposed by Jasser Auda, the existence of female headmen is basically something that should be commonplace in Indonesia. The value of maslahah behind the administrative duties and legal certainty of marriage is an objective reason for women to serve as penghulu. This is because realising benefit is the obligation and responsibility of every human being, regardless of gender. This is supported by the existence of cognitive features, wholeness, openness, interrelationship between levels, multi-dimensionality, and meaningfulness of women's headship which has fulfilled the elements of maslahat and the objectives of Islamic law. Therefore, through this research, the reconstruction of guardianship law in KHI should be carried out immediately so that it can pave the way for women to access the position of penghulu.

PROBLEMS OF MARRIAGE GUARDIANS IN SUPREME COURT DECISIONS: GENDER PERSPECTIVE ANALYSIS

Family law in some countries regulates guardianship in marriage as a pillar that applies absolutely, that a marriage is considered invalid and can be canceled if it is carried out without a guardian or with an unauthorized guardian. A handful of women activists consider guardianship over women to obstruct the realization of their rights and discriminate against women, including male guardianship over women in this marriage. Long before the issue of guardianship heated up again, the Supreme Court had actually faced cases of parents trying to cancel their child's marriage because it was done with an unauthorized guardian. The court of first instance and appellate level had annulled the marriage, but the Supreme Court at the cassation level actually viewed the marriage as legal according to Islamic law. The author in this article will analyze this decision using the method of explanative analysis and describe it with thematic content. Analysis of this decision leads us to discuss the problem of women marrying themselves off, women representing their marriages and women being guardians of marriage from a gender perspective. This finding shows the dynamics of guardianship law over women in marriage. Based on the principle of al-musāwah, the basic principle in marital guardianship is that men and women are equal; may not distinguish legal provisions between men and women based solely on their gender, except based on benefit.

Project DECIDE, part II: decision-making places for people with dementia in Alzheimer’s disease: supporting advance decision-making by improving person-environment fit

BackgroundThe UN Convention on the Rights of Persons with Disabilities, and the reformed guardianship law in Germany, require that persons with a disability, including people with dementia in Alzheimer’s disease (PwAD), are supported in making self-determined decisions. This support is achieved through communication. While content-related communication is a deficit of PwAD, relational aspects of communication are a resource. Research in supported decision-making (SDM) has investigated the effectiveness of different content-related support strategies for PwAD but has only succeeded in improving understanding, which, although one criterion of capacity to consent, is not sufficient to ensure overall capacity to consent. The aim of the ‘spatial intervention study’ of the DECIDE project is to examine an innovative resource-oriented SDM approach that focuses on relational aspects. We hypothesise that talking to PwAD in their familiar home setting (as opposed to a clinical setting) will reduce the complexity of the decision-making process and enhance overall capacity to consent.MethodsPeople with a suspected or confirmed diagnosis of dementia in Alzheimer’s disease will be recruited from two memory clinics (N = 80). We will use a randomised crossover design to investigate the intervention effect of the decision-making place on capacity to consent. Besides reasoning capacity, which is part of overall capacity to consent and will be the primary outcome, various secondary outcomes (e.g., other aspects of capacity to consent, subjective task complexity, decisional conflict) and suspected moderating or mediating variables (e.g., meaning of home, demographic characteristics) will be assessed.DiscussionThe results of the study will be used to develop a new SDM strategy that is based on relational resources for PwAD. If a change in location achieves the anticipated improvement in capacity to consent, future research should focus on implementing this SDM strategy in a cost-effective manner in clinical practice.Trial registration: DRKS00030799.

Nieznane protokoły posiedzeń podkomisji prawa o stosunkach z pokrewieństwa i opieki Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej z 1939 roku (część III)

Lost Minutes of the Sittings of the Sub-commission on the Law on Kinship and Care Relationships of the Codification Commission of the Republic of Poland in 1939 (Part III) When Poland regained independence in 1918, the different legal systems of the various partitioning states all remained in force on its territory. Drafts of uniform laws were to be drawn up by the Codification Commission established in 1919. One of its tasks was the preparation of a draft of the family and guardianship law. The sub-commission addressing this division of civil law worked until the outbreak of World War Two. The minutes of its sittings disappeared in September 1939 along with the total output of the Codification Commission. However, copies of minutes of the sittings of the subcommission held in 1939 were found in Kazimierz Przybyłowski’s collection of books donated to the Faculty of Law and Administration of University of Silesia in Katowice. These minutes shed new light on the final phase of the codification works. Publication of these documents will enable further detailed research on the history of family law in interwar Poland. The third part of the publication consists of minutes nos. 190–196.

Guardianship Law in India: Examining The Principle of the Best Interest of Minors and the Rights of Single Mothers as Sole Guardians

Guardianship Law in India: Examining The Principle of the Best Interest of Minors and the Rights of Single Mothers as Sole Guardians

Nieznane protokoły posiedzeń podkomisji prawa o stosunkach z pokrewieństwa i opieki Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej z 1939 roku (część IV)

Lost Minutes of the Sittings of the Sub-commission on the Law on Kinship and Care Relationships of the Codification Commission of the Republic of Poland in 1939 (Part IV) When Poland regained independence in 1918, the different legal systems of the various partitioning states all remained in force on its territory. Drafts of uniform laws were to be drawn up by the Codification Commission established in 1919. One of its tasks was the preparation of a draft of the family and guardianship law. The sub-commission addressing this division of civil law worked until the outbreak of World War Two. The minutes of its sittings disappeared in September 1939 along with the total output of the Codification Commission. However, copies of minutes of the sittings of the subcommission held in 1939 were found in Kazimierz Przybyłowski’s collection of books donated to the Faculty of Law and Administration of University of Silesia in Katowice. These minutes shed new light on the final phase of the codification works. Publication of these documents will enable further detailed research on the history of family law in interwar Poland. The fourth part of the publication consists of minutes nos. 197–201, and includes the reconstruction of articles 1–16, 40–58, and the draft of articles 59–78a as well.

Nieznane protokoły posiedzeń podkomisji prawa o stosunkach z pokrewieństwa i opieki Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej z 1939 roku (część II)

When Poland regained independence in 1918, the different legal systems of the various partitioning states all remained in force on its territory. Drafts of uniform laws were to be drawn up by the Codification Commission established in 1919. One of its tasks was the preparation of a draft of the family and guardianship law. The sub-commission addressing this division of civil law worked until the outbreak of World War Two. The minutes of its sittings disappeared in September 1939 along with the total output of the Codification Commission. However, copies of minutes of the sittings of the sub-commission held in 1939 were found in Kazimierz Przybyłowski’s collection of books donated to the Faculty of Law and Administration of University of Silesia in Katowice. These minutes shed new light on the final phase of the codification works. Publication of these documents will enable further detailed research on the history of family law in interwar Poland. The second part of the publication consists of minutes nos. 183–189.

The reform of guardianship law

The reform of the guardianship law has been decided! The reform will come into force on 1January 2023. The content of the guardianship law will not be completely restructured. The tense relationship between the protection of the person against decisions not made on his or her own responsibility and the self-determination of the person will be consistently further considered and strengthened in favor of the self-determination of the person concerned. Supportive decision making, the consideration of aperson's wishes, the abandonment of the term (and concept of) "well-being" as a measure for guardianship are some examples; however, the new law also sets boundaries in adhering to aperson's wishes. Namely, if they are associated with the risk of significant harm to the person or his or her property. The article first presents the main objectives of the reform. Based on this, the focal points are the deletion of the word "well-being", the regulation of the proxy power of attorney and measures for greater consideration and better implementation of the principle of the necessity, which is central to the guardianship law. Critical comments are made on the newly introduced spousal representation law and its significance for the psychiatric practice. As aresult, it can be stated that there will be hardly any significant changes in healthcare and even less so in the area of coercive measures. It remains to be seen whether the legislator's welcome concern to avoid guardianship through improved information and counselling on social rights will be achieved in practice. The same certainly applies to the strengthening of supported decision making, the idea of which is also to be welcomed but is still looking for agold standard for practice.

Selected Codification Challenges in Polish Family Law

Abstract Polish family law is undergoing change. For some time now, there have been various initiatives for its possible revision. However, social needs are ahead of legislators’ actions. Today there are a number of legislative challenges facing the Polish legislator in the context of the metamorphosis of Polish family law. The author presents selected problems connected with it and answers the question concerning the desirable way of further work on the metamorphosis of the present regulation of Polish family law. The author also presents issues that cannot be ignored in the context of preparing possible draft amendments to the current legislation. He highlights the role of the Commission on European Family Law and proposes that the starting point for the further metamorphosis of Polish family law would be the establishment of such a body in Poland based on the model of the Commission for the Codification of Family and Guardianship Law, whose work should be transparent and widely available.