What happens when a child is orphaned? Or a mentally or physically challenged person becomes incapable of taking reasoned decisions? Who will take care of them, their expenses and properties?
Here’s where a legal guardian comes in. In the overall sphere of estate planning and Will writing, knowing who a legal guardian is and how they can help, is important. Guardianship is not a new concept. Usually, friends and family take care of such situations. However, certain legalities come into play.
Who is a Guardian?
Let us start with the basics. A guardian is a person who is appointed by an appropriate authority to look after another person or his property. The person, for whom a guardian is appointed, is called a “Ward”. The guardian takes all legal decisions on behalf of the ward.
Who needs a Guardian?
Minors (children up to 18 years old) needs guardians. Here, parents are natural guardians. But, where none of the parents are alive or traceable or themselves incapable, a legal guardian is appointed.
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People who are physically or mentally disabled need a guardian. There are special laws which govern the law of Guardianship for such people. Which law applies to a particular case, to what extent, depends on the nature and degree of the disability of the ward. Let us now see how the law has recognized different kinds of disabilities, such as mental illness, mental retardation, autism and physical disabilities such as locomotor disability, visual impairment, hearing impairment, chronic neurological conditions and blood disorders.
Who Appoints a Guardian?
It is important to know who determines the need to have a legal guardian once a ward has been identified and who validates such appointments.
There are various laws which deal with these issues. India had signed the United Nations Convention on Rights of Persons with Disabilities, 2006. To give effect to this convention domestically, the Parliament passed 2 Acts, being (i) Rights of Persons with Disability (RPWD) Act and (ii) Mental Healthcare Act, 2017 (MHC Act).
Under the MHC Act, Guardians appointed for people with mental illness are called “Nominated Representatives”. It provides for establishment of a Mental Health Review Board, which is responsible for examining the applications for appointment of “Nominated Representatives” (Guardians) on case to case basis.
Under the RPWD Act, District Court or any other authority designated by the State Government can appoint guardian for persons with varying degrees of disabilities, on a case-to-case basis. It in fact provides for “Limited Guardianship” which is a system of joint decision operating on mutual understanding and trust between the guardian and the ward, which is limited to a specific period and for specific decisions.
There is one more Act which gives protection to those suffering from Mental Retardation, Autism, and Cerebral Palsy. This Act is called National Trust Act. It was passed in the year 1999, much before the 2006 UN Convention. Therefore, there are many provisions in this Act which overlap the provisions of the MHC Act and RPWD Act. This Act provides for establishment of Local Level Committees (LLCs) at district level, which are responsible for appointment of Guardians. There is a need to make necessary amendments to this Act to bring it in coherence with the provisions of the 2006 UN Convention.
Guardian is a custodian, not the owner
The legal Guardianship does not amount to any transfer of right title and interest in the property or assets of the ward. The relationship between the guardian and the ward is fiduciary in nature. Guardian only acts as a custodian of the property and assets of the ward, and not as an owner. He also cannot use these assets for any other purpose than the benefit of the ward.
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Similarly, a guardian is, first a caretaker, and then a decision maker. The guardian is meant to provide proper care attention and support to the ward. For disabled persons, it is the guardian’s responsibility to ensure proper treatment, while for minors, even the responsibility of the ward’s education vests with the Guardian. In case the Guardian is not able to discharge his duties, the law even provides for removal of a guardian.
What about persons in “Coma”?
One whole class of persons in need of care that has been neglected by the legislature so far is persons in “Comatose State”.
The judiciary, however, has taken a step forward. In the famous case of Aruna Shanbaug, the Supreme Court had recognized the concept of “Coma” and distinguished it from “Brain Death”, “Vegetative State” and “Minimally Conscious State”. The concept of “Coma” per se is not new to us. In the case of Shobha Gopalakrishnan v State of Kerala (2019 (2) KLJ 549), where the relatives of a person lying in Coma had to run to the High Court on SOS basis, the Court hinted at the need for legislation to fill this gap. However, since no law has yet been made on this subject the area still remains grey. This means that every time, a person seeking appointment of a guardian for a person in “comatose state” has to move the High Court under Writ Jurisdiction.
The Court has painstakingly laid down guidelines for such appointments. These guidelines, amongst many other things, require the appointed guardian to disclose the properties of the ward and submit a report to the Registrar General of the Court at regular intervals. There is a serious need to take a note of the existence of persons in Comatose State and make adequate provisions so that the hassle of their relatives/ near and dear ones, for moving the Court, each time in case of extremely urgent needs, is obviated.
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