When You Should Get Advice
- My older brother manages our mother's bank account while she has dementia, and money keeps disappearing
- I heard my brother is trying to sell our father's house
- We were told to appoint a guardian to admit our parent to a care hospital and handle bank matters
- Two siblings are fighting over who will be the guardian
- My parents want to choose someone in advance to manage their property before their judgment declines
Relevant Laws
Civil Act (민법) Article 9 (Adjudication commencing adult guardianship)
For a person who persistently lacks the capacity to handle their affairs because of mental limitations caused by illness, disability, old age or similar reasons, the family court commences adult guardianship at the request of the person, their spouse, relatives within the fourth degree, a prosecutor, the head of a local government or others, and must take the person's wishes into account.
Civil Act Article 936 (Appointment of an adult guardian)
The family court appoints the adult guardian on its own authority, taking into account the person's wishes, health, living situation and finances, and the candidate's occupation, experience and any conflict of interest.
Civil Act Article 959-14 (Guardianship contract)
In preparation for a time when their judgment may weaken, a person can make a guardianship contract by notarial deed with someone who will manage their property and personal care. It takes effect from the time the family court appoints a supervisor of the voluntary guardian.
Statutes are summarized. The official Korean text is available at the Korea Law Information Center (law.go.kr).
There Are Four Types of Guardianship
If the capacity to handle affairs is persistently absent, you apply for adult guardianship (성년후견); if it is insufficient, limited guardianship (한정후견); and if help is needed only for specific matters, specific guardianship (특정후견). There is also voluntary guardianship (임의후견), where, while their judgment remains, the person makes a guardianship contract by notarial deed with someone they trust.
The application is made to the family court for the parent's address. As a rule, the court asks a doctor for a psychiatric evaluation and also hears from the person (Family Litigation Act (가사소송법) Articles 45-2 and 45-3). It is not a procedure that starts immediately on a single medical certificate, so a decision can take several months.
The Child Who Applies Does Not Automatically Become Guardian
The court chooses the guardian on its own authority. If siblings are fighting over who will take the role, or a candidate has been involved in transactions tangled up with the parent's property, the court may appoint someone outside the family as guardian or add a guardianship supervisor.
Within 2 months of appointment, the guardian must prepare a list of the parent's property (Civil Act Article 941), and family court permission is needed to sell, rent out or mortgage the home the parent lives in (Article 947-2(5)). If the guardian does not act for the parent's benefit, relatives can ask for the guardian to be changed (Article 940).
Money Already Taken and Inheritance Disputes
While the parent is alive, the other children have no right to directly demand the return of the parent's property. Once guardianship begins, the guardian can, on the parent's behalf, claim back money a sibling took, or decide whether a criminal complaint is needed.
The list of assets and transaction records organized during the guardianship become the basic evidence later, when the inheritance begins, for disputes over special benefits, the forced heirship share and the scope of the estate. Gifts or wills the parent made before guardianship began are challenged separately on whether the parent had mental capacity at the time.
How We Handle a Guardianship Application
- 1
Choosing the type of guardianship
Based on the medical certificate and the parent's daily condition, we decide whether to apply for adult, limited or specific guardianship.
- 2
Preparing the application and attachments
We gather family relationship documents, the medical certificate, information on the assets, and opinions or consent from other family members.
- 3
Proposing a guardian and supervision
If there is conflict in the family, we explain why we recommend a particular candidate and why a supervisor is needed.
- 4
Responding to evaluation and investigation
In line with the schedule for the psychiatric evaluation and the family court investigation, we explain the parent's condition and how their property is actually being managed.
- 5
Follow-up after appointment
We continue with preparing the list of assets, claiming back money wrongfully taken, and applying for permission to dispose of property.
Lawyers handling these cases
Hansol Kim Managing Partner
Former prosecutor at the Incheon District Prosecutors' Office, the Ansan Branch of the Suwon District Prosecutors' Office and the Hongseong Branch of the Daejeon District Prosecutors' Office
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Miso Kim Partner
Formerly at Daehwan Law Firm, in-house counsel on the legal team of Wemade Co., Ltd., and Oracle Law Firm
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Frequently asked questions
Do we need a guardian to withdraw hospital costs from our parent's account when they have dementia?
It depends on the bank, but if the account holder's own wishes cannot be confirmed, banks often refuse withdrawals or account closures even for family members. If you only need help with a specific matter such as hospital costs, you can apply in a narrower form, such as specific guardianship, so start by deciding what scope you need.
My brother became the guardian and seems to be spending our parent's money as he likes.
At the request of relatives or others, the family court can investigate the parent's financial situation and order the guardian to take necessary measures (Civil Act Article 954). Request an investigation with concrete evidence such as bank statements, and if the situation is serious, ask for a guardianship supervisor to be appointed or for the guardian to be changed.
Once adult guardianship begins, can our parent no longer make a will?
They can make a will only when their mental capacity has recovered, and in that case a doctor must add to the will a note of that recovered state and sign and seal it (Civil Act Article 1063). A will made without that procedure is very open to challenge.