A guardian is a person appointed to look after another person or his property. He assumes the care and protection of the person for whom he is appointed the guardian. The guardian takes legal decisions on behalf of the person and the property of the ward. The occasion for taking care of another person may be his minority that is, the person has not completed 18 years of age. It can also be the guardianship of a person who because of physical or mental issues is unable to take care of himself or his property.
Guardianship of a Minor
- Unless a particular personal law specifies otherwise, every minor person domiciled in India is deemed to have attained majority upon completion of 18 years of age. (Majority Act 1875)
- The court or appointed authority has the authority to decide the guardian of a minor/child, who has not completed 18 years of age, by appointing one a guardian or removing another as a guardian. (Guardians and Wards Act, 1890)
- However, in the case of a minor for whose person or property, or both, a guardian has been appointed or declared by any court of justice before the age of 18 years, and in case of every minor the superintendence of whose property has been assumed by the Court of Wards, age of majority is 21 years.
- In Hindu law only three persons are recognized as natural guardians, father, mother and husband.
- Father is the natural guardian of his minor legitimate children, sons and daughters.
- The mother is the natural guardian of the minor illegitimate children even if the father is alive.
- Mother is the natural guardian of her minor legitimate children after the father is dead or is incapable of acting as guardian.
- The custody of a minor who has not completed the age of five years shall be with the mother unless the welfare of the minor requires otherwise. (Proviso to clause (a) of Section 6, Hindu Minority and Guardianship Act)
- In appointments made by the Guardianship Tribunal, a guardian can be a family member, friend or unpaid carer of the person with a disability. This person must be 18 years and over.
- Where the Court is satisfied that it is for the welfare of a minor that an order should be made, appointing a guardian of his person or property or both, or declaring a person to be such a guardian, the Court may make an order accordingly.
- Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order appointing or declaring another person to be guardian in his stand shall not be made.
Guardianship of Persons with Disability
Persons with autism, cerebral palsy, mental retardation and multiple disabilities, even after acquiring 18 years of age, may not be able to manage their own affairs including taking appropriate legal decisions. Therefore, they may require someone to represent their interests throughout their lives. In cases of cerebral palsy and multiple disabilities, there may be a need for limited guardianship as with the help of mechanical aids/facilities, they may be able to function with limited degrees of independence.
Under the National Trust Act, (NTA1999) the Local Level Committee headed by the District Collector is empowered to appoint guardians for persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities. It also provides mechanism for monitoring and protecting their interests including their properties. (Section 14)
Persons with mental illness are, however, not covered under NTA 1999.
When the Mental Health Care Bill was being drafted, a view was taken by the Ministry of Health that it being a Health Care Bill, only health related provisions should be included and the other provisions such as appointment of guardians and managers etc. which existed in Mental Health Act 1987 (MHA 1987) would be dropped. The view was that provisions not directly related to mental healthcare but relevant for PwMI and other disabled persons should find place in Rights of Persons with Disability Bill which would cover persons with mental illness (PWMI). Accordingly provisions related to guardianship were excluded from the Mental Health Care Bill 2013 and the MHCA 2017.
In compliance with the UNCRPD, the Rights of Persons with Disabilities Act (RPwDA 2016), provides the District Courts the power to make an order for appointment of limited guardian to take care of a mentally ill person and take all legal binding decisions on his or her behalf in consultation with such a person. Under extra ordinary situations, district courts can also grant plenary guardianship to the mentally ill person. (Section 14)
RPwDA 2016 also provides that every guardian appointed under any law (MHA 1987 and NTA 1999) shall be deemed to function as limited guardian requiring him or her to consult the person of whom he or she is the limited guardian, while taking legal binding decisions and also taking other care. The Court may, however, grant plenary guardianship afresh to a person unable to function as a limited guardian after taking in to account all relevant records within six months from the date of the enactment of RPwDA. (Section13.2)
– Amrit Bakhshy