Saturday, August 21, 2010

Ten Years of Adult Guardianship Law Reform

"Ten years ago, the adult guardianship system was established in Japan to ensure support for elderly and disabled persons who have diminished mental capacities and protect them from fraud and other foul play.

"Under this system, a guardian holds the power of attorney to manage the assets of the incapacitated ward, choose welfare service programs for the ward and handle legal matters such as signing a contract to commit the ward to an institution. Petitions for the courts to appoint guardians are now being filed in increasing numbers every year. More than 27,000 petitions were filed last year. But only about 60 percent of the appointed guardians are the families and relatives of the parties being cared for. Clearly, the current trend is to appoint as guardians lawyers, judicial scriveners, welfare workers and other specialists.

"By appointing such third-party professionals, rather than families and relatives who may be lax in their fiduciary duties, trouble can be avoided and the rights of the incapacitated elderly or disabled ward be protected. Some families and relatives are unhappy about this, but we believe it is the most reasonable way to ensure the system is enforced as the law intends.

"But the adult guardianship system is no protection for incapacitated people who have no kin to turn to, and whose assets are not worth hiring a professional to manage them for a monthly fee of several tens of thousands of yen. To help such people, several municipalities, including the city of Osaka and Tokyo's Setagaya and Shinagawa wards, have come up with the concept of "citizen guardians." These people live in the same community as the incapacitated person needing help, and they use their community network to provide free service.

"By this autumn, Setagaya Ward will have 62 such active and prospective guardians. Citizen guardians are appointed after 50 hours of training. Their duties include visiting their charges and checking their health, managing their household finances and handling pertinent legal contracts by proxy.

"To protect guardians from taking on burdens beyond their capacity or becoming involved in trouble, there are lawyers, doctors, accountants and other specialists providing support, and the overall working of the system is supervised by social welfare councils.

"But outside such a forward-thinking community as Setagaya Ward, most municipalities are reluctant to act. Their tight finances don't allow new undertakings, some say. Others say there is little demand for such guardians, and argue that professionals, rather than amateurs, should be tapped in this sort of situation.

"We certainly believe each community should do as it sees fit. However, there is no doubt that petitions for guardianship appointments will keep increasing. And once a guardian has been appointed, in most cases his or her duties will continue until the ward dies. The number of people requiring guardians will snowball. In fact, there are already 130,000 people around the nation receiving support under the adult guardianship system. Each region must build a lasting, reliable system.

"Effective use of available guardians is important. We suggest experts be entrusted with difficult cases, such as when the ward owns substantial assets or there is a family feud, while citizen guardians may suffice in simpler cases. And the system should be flexible, making it possible to change guardians when a person's circumstances change.

"The loss of strong community ties is felt ever more acutely these days. This is all the more reason for society to pull together to develop new kinds of relationships. We believe the citizen guardianship system is a step in the right direction."

By Asahi Shimbun (Editorial, 8/20/2010), Link to article (last visited 8/21/2010)

Tuesday, August 17, 2010

New Lawyers and Job Market in Japan

"About 40 percent of legal trainees preparing to enter the job market as lawyers later this year have yet to receive offers of employment, according to a survey by the Japan Federation of Bar Associations.

"One of the main reasons for this is a rapid increase in the number of people in the legal profession, meaning more competition for the few spots available at law firms.

"If the situation continues, many legal professionals will have little option but to open their own practices and try to establish themselves as lawyers in an unfavorable climate.

"Another reason for the situation is the limited areas in which lawyers are practicing.

""I've been rejected by over 70 law firms," said a 34-year-old would-be lawyer who passed the bar last year.

"He was hoping to begin his career as an "isoben" lawyer at a firm in the Tokyo metropolitan area after finishing his legal training at the end of this year. Isoben lawyers help their senior colleagues deal with client requests while working on fixed salaries.

"The man intended to cut his teeth at a law firm, find his own clients and forge out on his own. If things had gone according to plan, he would have had no need to worry about his future.

""I've even begun considering just renting space in a law office," he said. In this approach--known as nokiben--lawyers are responsible for finding their own clients and generating their own income.

"The man said he had become increasingly anxious over repaying the 7 million yen he borrowed for law school.

"This man is just one of 2,000 would-be lawyers surveyed last year by the federation. Among the nearly 1,200 who responded, 43 percent said they had not received job offers. This is up from the 30 percent who had complained of the problem in the previous annual survey.

"Fifty-eight of the legal professionals entering the job market last year were unable to find jobs as isoben or even as nokiben, and instead were forced to open their own practices.

"The federation predicts people entering the legal profession will increasingly need to open and run their own businesses, as the glut of lawyers is making it more difficult for legal trainees to get their feet in the door.

"Since 2000, the government has been pushing judicial reform to increase the number of legal professionals in an attempt to improve legal services for the general population.

"As a result, the number of people who pass national bar exams doubled from 1,000 to more than 2,000 annually. As of the end of last fiscal year, there were 28,789 registered lawyers. A decade ago, that number was 17,126.

"Riichiro Takahashi, vice president of the federation, said, "If we start to see a lot of people opening up their own firms without having trained under more experienced attorneys, we could see a lot of problems in terms of protecting citizens' rights."

"With this unprecedented situation, the federation is urging bar associations to explore new areas of need for the profession. In April, the federation opened its Himawari Chusho Kigyo Center, a center for small and midsize companies that do not have lawyers on retainer. Managers with legal concerns can call the center to be transferred to their local bar association.

""We want businesses to know there are uses for lawyers outside of court," one federation official said.

"On July 20, the federation made an urgent request to the Japan Business Federation (Nippon Keidanren) and other major economic organizations, asking them to make sure their members had a full understanding of services available from corporate lawyers.

"There were more than 400 lawyers directly employed by the corporate world as of the end of last year, but this trend has slowed since Lehman Brothers went bust in 2008.

"As of March, there were 200 lawyers employed as full-time staff at the offices of the Japan Legal Support Center, which provides legal services mainly in rural areas.

"A Japan External Trade Organization official who helps companies in the Shikoku region do business overseas says lawyers are spread unevenly throughout the country.

""There is demand here for lawyers with expertise in international business and other affairs, but there are few nearby," according to the official.

"Nippon Keidanren's Business Infrastructure Bureau says lawyers tend to be concentrated in big cities and there are many regions that have a shortage of lawyers. The bureau also says further measures need to be taken to expand the demand for lawyers by, for example, expanding the network of Legal Support Centers."

By Yomiuri Shimbun (8/14/2010), Link to article (last visited 8/17/2010)

Thursday, August 12, 2010

Organ Transplantation Law and Brain Death

"Under the revised law on organ transplantation that went into full effect on July 17, organs of people declared brain-dead may be donated with the consent of family members even if the intent of the patient is unknown.

"On Tuesday, organs were contributed under the provisions of this new legislation for the first time.

"The donor, a man in his 20s, was confirmed brain-dead on Monday due to injuries suffered in a traffic accident. His heart, lungs, liver and other organs were harvested for transplantation into patients who had been waiting for such donations.

"Under the previous law, organ donations required the consent of the donor in writing. With the amended version, the final decision is left to the family unless the brain-dead person had specifically expressed opposition to the use of his or her organs.

"According to the Japan Organ Transplant Network, Japan's only organization for coordinating organ transplantation, the man expressed the desire to donate his organs while watching a television program on that subject with his family. The family decided to have his organs donated after weighing the wishes he voiced at that time.

"This is welcome news for patients waiting for organ donations. The family, however, must have had an extremely difficult time reaching the decision in the absence of the man's written consent.

"We must respect the sentiment of these family members and firmly support their decision.

"At the same time, we hope this precious experience can also be used effectively to realize more medical transplantations.

"In this particular case, the fact that family members discussed organ transplantation apparently made it easier to hypothesize what choice the man would have made. There is no doubt, however, that cases devoid of such clues will emerge in the future.

"As a reference for such instances, the Ministry of Health, Labor and Welfare must thoroughly examine and verify this case, and disclose its findings to the greatest degree possible.

"Under the revised transplant law, physicians are required to inform family members of the organ donation option in the event that a loved one is declared brain-dead.

"In this case, how and when was the family informed of this alternative? What process did they go through to reach the decision to donate the man's organs?

"To establish a truly reliable medical transplantation system, it is crucial to uphold full transparency and not bottle up the process behind closed doors. While respecting the family's wishes for solitude, as well as the right for privacy, every reasonable effort must be made to clarify what happened in this case.

"Prompted by this example, the general public must have become more aware of the heavy responsibilities of family members.

"The issues include whether to donate organs and what choices best reflect the wishes of potential donors. There will be cases when such decisions must be rendered amid intense sorrow, even if based solely on conjecture.

"Firm knowledge of what the person in question desired will ease the psychological burden of family members. Toward that end, daily conversations about such subjects, as well as recording one's desires in writing whenever possible, may be very wise approaches.

"The upcoming Bon holiday break is a period when families, including grandparents in many cases, gather for vacations or other activities. This could be an excellent opportunity to discuss the recent transplant case, and consider the preferred course of action if such a situation occurs within one's own family unit."

Asahi Shimbun (Editorial, 8/11/2010), Link to article (last visited 8/12/2010)