It's time for trust laws to govern personal assets.
In mid-December 2567, I learned of the problems of bedridden patients from Ms. Thipsuda Thawaramara, former Deputy Secretary-General of the Securities and Exchange Commission (SEC), who discussed the illness of her former subordinate, who was about 40 years old but suddenly fell ill, falling into a state where he could not regain consciousness and had to be bedridden.
At the moment, I have to live with my mother, who is over 70 years old, who has to take care of her daughter. My mother is worried that if she passes away, who will take care of her daughter? Even though she has assets, she does not know how to manage them if something like this happens. We are also discussing whether Thailand should have a trust law to take care of personal assets.
In addition, I have also been informed by the executives of the Thai Red Cross Society who take care of the elderly at Suan Khaniwat that they have the same problem of managing the assets of the elderly, whether it is managing assets, withdrawing money from bank accounts, because these elderly people, many of whom may be in a state of incapacity or incapacity.
These problems will continue to increase because Thailand is a complete aging society and the new generation does not marry, they are nuclear families, even if they do marry they do not have children. And if not solved, it will definitely become a national problem that will affect the economy and society of Thailand in the future.
As a social enterprise worker, I have studied these issues from a legal perspective and have made various recommendations, such as the draft of the Trust Act for Personal Asset Management, which was passed by the cabinet during the government of General Prayut Chan-o-cha in 2561 (I also wrote an article in the book “Thai Family Business Success Formula in a Changing World”, Case Study 7 on the establishment of trusts, and an article on “Advance Appointment of Guardians and Custodians: Elderly Law Issues” in the Bank Finance Journal (June 2564) and published on the website https://moneyandbanking.co.th/2021/17637/
The article contains details and proposals for drafting a trust law, including amending civil and commercial law regarding the appointment of a guardian or conservator in advance, because under Thai law, the appointment of a guardian or conservator must be made when an event occurs first, with the persons who must present evidence in court being the patient's relatives and the doctor as an expert witness.
This civil law is a very old law. Therefore, it should be revised and changed, especially in the era when Thai society is an era with elderly people who do not have families or elderly people who do not have caregivers. As a result, these groups of people are increasingly targeted by financial fraud.
Therefore, I think that with the increasing severity and number of problems, those involved should consider proposing to the government to expedite the enactment of these laws as soon as possible, including the Personal Asset Management Trust Act, because in addition to answering the question of personal asset management, it will also be a tool for family businesses to organize their shareholding structures and prevent disputes between family members in the long run.
It will also eliminate the need for Thais to set up overseas trusts, which are expensive. Currently, there is a draft law that was pending consideration by the Council of State at that time and was dropped along with the first government of General Prayut Chan-o-cha, but it was dusted off, opinions were heard, and submitted to the parliament quickly.
I would like to summarize the concepts and principles of the 2561 Personal Property Management Trust Act at that time as follows:
The Draft Act on Trusts for Personal Asset Management B.E. … is an application of the principles of the Trust Law as a tool for managing personal assets efficiently and reducing the management of assets outside the country. It is also in line with the country’s economic development guidelines in the current situation according to the 12th National Economic and Social Development Plan under the strategy for creating economic strength and sustainable competition, which emphasizes increasing the efficiency of the financial system and financial institutions to support economic expansion. The main points of the Draft Act are summarized as follows:
- The definition of trust is a legal relationship related to property, involving three parties: the trust founder, the trustee, and the beneficiary. The trust founder makes a trust establishment contract for the trustee to manage the property in accordance with the objectives of the trust establishment for the benefit of the beneficiary. The period for managing the trust is set at no more than 3 years.
- Specifies the scope of the use of trusts by stipulating that the establishment of a trust under this Act must have the purpose of managing personal assets and must not have the purpose of raising funds from the public and the management of trusts that are subject to the law on trusts for transactions in the capital market.
- Qualifications of Trust Founders, Trustees and Beneficiaries
- The trustee may be any person or legal entity, but must not be the same person as the trustee, and the trustee must not be a beneficiary.
- Trustees must be licensed to conduct trust business by the SEC.
- A beneficiary is a person specified in the trust deed, but may be the founder of the trust, and a beneficiary may be an individual or a group of individuals.
- Determine the benefits and protection of the trust to maintain the trust's assets in the trust.
- Specifies the duties and responsibilities of a trustee. A trustee has a duty to manage assets in accordance with the trust deed and this Act. He must manage assets honestly for the best interests of the beneficiaries and must manage assets with care. When there is a breach of duty in managing the trust or assets are managed incorrectly or not in accordance with the contract, the trustee must be liable to compensate for damages to the trust and the beneficiaries.
- The supervision under this Act requires the SEC to oversee the granting of licenses to business operators as trustees.
In addition, the draft bill proposed by the Ministry of Finance in 2561, in addition to being used as a tool to manage personal assets effectively and reduce the management of assets outside the country, also plays an important role in building the potential of Thai financial institutions and the Thai capital market to be able to compete in foreign markets and increase opportunities to do business with neighboring countries.
It also allows people from small businesses to large family businesses to have a tool to use trusts as a new alternative for managing personal assets more efficiently and responding to the need to use trusts to manage personal assets and the intention to pass on assets to the next generation without having to worry about inheritance of assets, resulting in wealth and sustainability of assets in the country, which will have a positive effect on the development of the country's economy as a whole. At that time, it did not focus on solving the problems of the elderly and bedridden patients.
In addition, there is a research in 2561 by Dr. Narun Phothiphatthanachai, titled “International Perspectives on Asset Management to Support the Elderly by the Thai Gerontology Research and Development Institute Foundation (TGRI) and the Health Promotion Foundation (HPF)” which is very interesting. It proposes an alternative to establishing a trust like Japan because it has a legal system similar to Thailand. This research will answer the question of developing laws and amending existing laws to be practical.
As for the amendment of the Civil and Commercial Code regarding the appointment of guardians and custodians, some studies have already been conducted. Therefore, amendments can be proposed quickly as well. We may use Japan and France as examples.
These issues are important issues in Thai society as the number of elderly people increases. Therefore, all Thai people from all sectors must participate in pushing and driving for the improvement of related laws, especially for the elderly who currently have both power and political roles. Therefore, the amendment of such laws should be accelerated as soon as possible.
I call on all political parties, both opposition and government, to pay attention to and accept this issue as a national agenda and take the initiative to propose these laws as a New Year's gift for 2568 to the people as soon as possible.
I would like to wish all readers a happy new year 2568.
