Best interests decision-making in the Chinese adult guardianship regime through a P-centric lens

Abstract

This article explores how best interests decisions are made on behalf of adults with impaired capacity in China through the lens of P-centricity, or the extent to which P is kept at the centre of the decision-making process. A two-part review, comprising a textual analysis of relevant legislative provisions and a cross-sectional review of 550 recent Chinese judgments on Article 35 of the Civil Code, is conducted. While an intention to move towards P-centricity was found at the legislative level, it is argued that the ideals of P-centricity have not been implemented on the ground by the courts, as demonstrated by the lack of P’s participation and P’s perspective in the vast majority of the cases, as well as the lack of a systematic, consistent approach either to how judges approached best interests decision-making generally, or when and how they ascertained P’s wishes in this process. Given the benefits of placing P at the centre of the decision-making process, recommendations relating to the development of judicial guidance and the training of judges are put forward.