Effektivare och kvalitativt bättre ställföreträdarskap för personer i behov av god man eller förvaltare - En analys av föreslagen lagstiftning i SOU 2021:36

Sammanfattning: In Sweden, there are currently over 100,000 trustees and legal guardians, who can be appointed to handle a person’s financial, legal, and/or personal matters. The relationship between the individual and the trustee is considered a form of power of attorney for performing tasks for the person against some minor payment. Within swedish politics, there have been a lot of discussions about issues in this area. Each municipal decides how to structure the organization. The role of a trustee can consist of three different parts: managing property, protect-ing rights, and providing for the person’s personal matters. The terms for these parts have been perceived as unclear and have caused misunderstand-ings, especially the term personal matter which has been mistaken for includ-ing health care. Another problem that has arisen in some cases is that legal representation has been appointed even when less intrusive measures could have been taken to help the individual. This is due to the current legislation being unclear on this point. The system of legal representatives and trustees is largely based on volunteer work where a trustee in Sweden is being payed approximately 8000-12 000 Swedish kronor per assignment and year. The volunteer aspect results in some people with a great need for help having to wait a long time before a trustee is appointed. Recruitment is particularly difficult in complex cases where the individual has severe psychiatric problems, is violent, has a severe addiction or serious disabilities. In 2014, the UN Committee on the Rights of Persons with Disabilities criti-cized the swedish system of legal representation, as it allows for a restriction of the decision-making rights of people with disabilities. Criticism was also raised in 2017 by the Swedish National Audit Office, which pointed out that there were major shortcomings regarding the supervi-sion of trustees and urged the Government to take greater responsibility to ensure increased legal security. Problems have also been recognized by the Ministry of Justice, which in 2019 decided to appoint a commission of inquiry with the task of specifical-ly reviewing the problems with the rules on the area. The overall goal of the investigation was to ensure that people who are una-ble to manage their own affairs are given appropriate support and protection, while also ensuring that their rights are respected. The investigation was reported in the report SOU 2021:36. Where several proposals for changes were presented. The report suggests that a new agency with overall responsibility should be established, that the process for obtain-ing a legal guardian should be simplified by moving decision-making to oversight committees, which should be the mandatory organizational form, and that the possibility of hiring professional trustees should be introduced. The investigation also proposes a mandatory national education and a secure state e-identification. It is also suggested that an amendment to the legislation should be made where representatives should take more account of the person’s own will and well-being. The problem lies in balancing the trustees’ powers against the person’s will or assumed will. Some of the criticism in the responses has been that it can be difficult to interpret the principal's assumed will in some cases and that the principal does not always understand what is best for themselves. The concepts of well-being and assumed will should be devel-oped further to ensure a consistent interpretation. The expansion of legisla-tion and clarification can mean increased predictability, which would strengthen legal security. Against this background, the purpose of this thesis has been to analyze how the proposed legal changes in the investigation relate to its purpose, if there has been any shift in any direction regarding the view of the individual per-son's rights and if the proposed legal changes in the report have been influ-enced by any of the other Nordic countries. To answer these questions, a legal-dogmatic method is used through an analysis of primary legal sources such as laws, preparatory law, case-law, and doctrine, as well as a legal analytical method through an analysis of the report's critique of current law, the proposal and critic for the changes ac-cording to the investigation’s proposal and the motives behind the proposal. The proposals put forward in the investigation show a political will to strengthen the rights of the individuals. The aim of ensuring that people who need a representative get the help and support they need is in line with the current legislation's purpose and the proposal of the investigation. However, more resources and time should be put into further investigation of the SOU 2021:36 to increase individual adaptation and legal security. For example, the investigation concludes that it is difficult to recruit trustees, but the purpose of the investigation has been to maintain the voluntary as-pect. I believe that the investigation has not fully fulfilled the task of taking a position on how to facilitate the recruitment of competent trustees. Compared to the other Nordic countries regulations described in this thesis, there is no representative register and an agency with main responsibility for representative issues in Sweden. The proposal of the report, including the establishment of a national representative register and the establishment of a new state agency, seems to have been strongly influenced by the other Nor-dic countries.