论老年监护设置依据

On the Basis of the Elderly Care Settings

老年监护设置不同于未成年人监护设置,设置依据是老年监护设置的前提条件,却为学界所忽视。对监护设置历史的追溯可以发现,监护设置依据自古包括智能和体能两因素,近现代国家民法中也多有体现。不同于未成年人体能和智能增长"从无到有"的过程,老年人因衰老而导致的体能与智能减损是一个"从有到无"的过程,年龄无法成为设置老年监护的直接依据。智能或体能减损致老年人无法"正常化"生活是老年监护设置的合理标准。

The academic research on elderly care is not based on the actual needs of the elderly individuals,which does not really deals with the issue of how to set elderly care. From the historical retrospective,we know that the system of guardianship settings is based on the factors of intelligent mental health and physical condition,stated in the laws of the modern countries. Because of the process of aging caused by physical and mental impairments,age can not be the basis of elderly guardianship basis. The weakening of mental and physical abilities should be the standards for elderly guardianship settings.