2017.7.18
Frank Sun
The Ministry of Justice issued the Fa-Lu-10603509010 Circular of July 18, 2017 (hereinafter, the “Circular”) to communicate that after a husband and wife have divorced, if it is agreed that one of them will hold the parental right over their minor children, the party who holds the parental right may independently entrust another person in writing to perform the function of a guardian.
Article 1092 of the Civil Code provides: “In regard to a minor child, the parents may authorize, in a written form, another person to perform the function of a guardian for specific matters and within a fixed period.” This is an entrusted guardian provision designed for circumstances where the parents are in fact temporarily or partially unable to perform the function of a guardian. The first part of Article 1089, Paragraph 1 and the first part of Article 1055, Paragraph 1 of the Civil Code provide: “The parents shall jointly exercise their rights and assume their duties in regard to their minor child, unless otherwise provided by law,” and “after the husband and the wife effect a divorce, one party or both parties of the parents will exercise the rights or assume the duties in regard to the minor child by mutual agreement.” Therefore, the rights and duties with respect to minor children should be basically jointly exercised or assumed by the parents. After the husband and wife have divorced, only one of them will exercise or assume the rights and duties with respect to the minor children except when both parties agree to jointly hold the parent rights for the children.
It was further pointed out in the Circular that if it is agreed that one of the parties will hold the parental right over the minor children, such party holding the parental right may unilaterally entrust another person to perform the duty of a guardian in writing pursuant to Article 1092 of the Civil Code without a letter a consent from the other party who does not hold the parental right, provided that matters under entrusted guardianship shall be limited to factual protection and education, designated domicile, disciplinary action and management of a limited amount of money or personal property, and that the right of agency or consent for identity and property-related acts shall be exercised in person and shall not be entrusted to another person.