Shanghai Guidelines on Durable POAs for Elderly Persons

We wrote an article before when China Civil Code was enacted and put into effect in 2021 introducing the so called "consentual guardianship" regime that was intended to address the rising phenomena in China where elderly people are living alone with kids living in different cities or countries due to various reasons.

However the concise wording in China Civil Code about "consentual guardianship" means it is still pretty far off from giving impact on real life. In pratice, we have seen notary offices in China vigirously pushing the development of this estate planning instrument by helping with notarizing related legal documents signed that purpose. While detailed implementation rules from China central government or China Supreme Court, Shanghai government has been very practive in rolling out this legal instrument in its territory, mainly for the reason that Shanghai has already entered into "gray" city with elderly people counting for a great proportion of its population.

Thus Shanghai government has issued guidelines in translating the rules in the books into reality. At end of 2025, Shanghai government issued its first notice setting out legal framework for rolling out the consentual guardianship regime, and in June of 2026, it issued this new notice laying down more concrete implementation rules.

I.  Concepts: Guardianship or Durable Power of Attorney

While I use the term "consentual guardianship", the word "guardianship" doesn't seem appropriate as it is often used in common law jurisdictions to refer to a guardian appointed through courts. Instead, the term "durable power of attorney" is more suitable in describing the legal regime of "consentual gardianship" where an elderly person appoints a trusted individual or orgazation to take care of his or her assets, daily life and medical treatments etc. when he or she loses civil capacity to act on their own. Nonetheless, for ease of writing, I will continue use the word "guardian" to refer to the person appointed under the legal regime.

II.  Institutions Set Up in Shanghai Guidelines

1.   Key Parties Involved

• Ward (the elderly person): Must possess full civil capacity when signing the guardianship agreement and be able to express their true intentions clearly.
• the Guardian: May be a close relative, another willing individual, or a professional organization. Individuals must have the capacity and integrity to perform duties; organizations must be lawfully registered with proper governance structures and qualified staff. The Guidelines encourage professional social organizations registered with civil affairs departments to serve as guardians. In practice, there are not many organizations specializing in this area of social services.
• Guardianship Supervisor: Encouraged to be appointed to oversee the guardian’s performance, handle emergencies, and apply to the court to revoke the guardian’s qualification if necessary. This is something not envisioned by law but proposed to be included in Shanghai local guidelines. Very much like a protector in the trust context.
• Property Manager:Encouraged to be a separate third party (rather than the guardian) to achieve separation of personal care and property management, thereby safeguarding the ward’s assets. The manager’s authority must be clearly defined in the agreement or a trust instrument. The role of this separate property manager is also something creative in Shanghai local guidelines. Where the ward has substantial assets to be managed over long term, it is advisable to have a separate manager to strike check and balance with the guardian who won't be able to siphon or otherwise benefits himself from his duties of guardianship.

2.   Establishment and Operation  of Guardianship or EPOA

• Agreement on Guardianship: the elderly person, while fully capable, shall enter into a written guardianship agreement with the chosen person who can be whoever or organization the said elderly person trusts. The Guidelines promote using the model agreement template and having the agreement notarized to ensure legal validity. Neighborhood committees, village committees, elderly organizations, and eldercare institutions may be invited to witness the signing. In practice, notarisation is most desirable due to its clear legal position, and on the hand, witnesssing a legal document is very risky and problematic in China judicial practice.
• Commencement of Consentual Guardianship: the guardianship relationship formally begins only after a people’s court declares the ward to have lost or partially lost civil capacity. In other words, court intervention is necessary here to put the signed guardianship agreement into action. In practice, the interested parties or relevant organizations may petition the court for such a declaration, and the court may commission a forensic psychiatric evaluation if necessary. It shall be noted that the proceeding for determing and declaring the civil capacity of a natual person is not a normal litigation process but rather an application process specially prescribed in China Civil Procedures Law.
• Termination: the guardianship relationship terminates when the ward regains capacity, dies, the guardian loses capacity or dies, the guardian is revoked by law, or the agreement expires or is dissolved. Upon termination, the guardian must transfer affairs and settle accounts under the supervisor’s oversight.

3.   Interim Agency/Representation Services

There could be a long waiting period after the execution of the guardianship agreement to the day on which the ward is declared by Chinese courts as a person with no or limited capacity. The determination and declaration of civil capacity takes time as well. What can be done in this interim period if the ward is no longer able to deal with his or her own affairs?

The Guidelines seems to distinguish the nature of the relationship between the two parties in the interim period as normal agency relationship where the to-be guardian can act on the elderly person's behalf to deal with the latter's daily life and personal care, before the guardianship is formally triggered by court intervention. The scope of agency or representation is set out in the guardianship agreement. 

The Shanghai Guidelines however fails to publish a template or model POA to be used during the interim period and after the guardianship formally begins. In practice, it is advisable to prepare a power of attorney with clear scope of powers to enable the agent-guardian to act in his respective capacity.

III.   Model Guardianship Agreement

The Shanghai Guidelines is published with an attached Model Guardianship Agreement (2026 Edition) providing a detailed template covering:

- Identification of the ward (Party A), guardian (Party B), supervisor (Party C), and property manager (Party D);

- Specific guardianship matters: personal care, medical decisions, property management, document custody, social welfare applications, legal proceedings, funeral arrangements, and estate administration;

- Delegated agency and temporary care provisions for the period before the ward is judicially declared incapacitated;

- Property restrictions: Prohibitions on borrowing, guaranteeing, purchasing luxury items or real estate, changing insurance beneficiaries, participating in financing activities, or making large unilateral gifts to the guardian or supervisor, unless specific conditions are met and the supervisor consents;

- Reporting obligations: The guardian must maintain an inventory of property and submit regular, ad hoc, and final reports on the ward’s status and financial transactions;

- Supervision: The supervisor’s duties include monitoring the guardian, investigating the ward’s condition, and petitioning the court for revocation or damages if the guardian breaches duties;

- Remuneration and expenses: Provisions for payment to the guardian, supervisor, and property manager;

- Dispute resolution and termination procedures.

In essence, the document establishes a comprehensive framework to help Shanghai’s elderly proactively plan for future incapacity by appointing trusted guardians and supervisors, with strong emphasis on procedural safeguards, separation of personal and property management, and professional oversight.