Who is a guardian?
A guardian is a person who has assumed the care and protection of another person, and is responsible for all legal decisions on behalf of that person, and his property.
All parents are legal guardians of their child(ren) till the child attains 18 years of age. After that parents are no longer the legal guardians. This means that they cannot take any legal decision(s) on behalf of their child, or legally represent their child. The child is seen as having the ability to take those decisions by itself.
The special situation of persons with. Autism, cerebral palsy, mental retardation and multiple disabilities
Persons with Autism, Cerebral Palsy, Mental Re tardation and Multiple Disabilities are in a special situation because even after they reach 18 years of age, they are not seen as being adequate to manage or take any legal decisions for their betterment. In case of Cerebral Palsy and Multiple Disabilities there may be need for only limited guardianship because of the availability of enabling mechanisms and /or scientific facilitation enabling persons to live with the certain disabilities. The National Trust Act, therefore, enables a person with above disabilities to have a guardian representing her/him throughout their lives.
As per the Act, a parent can get legal guardianship of their son or daughter with disability and represent them even after they are 18 years of age.
Parents are the Natural Guardians of their children till their child turns -18. So they do not need to apply for guardianship until then. After that the parents can apply for guardianship under the National Trust Act.
Nature of Guardianship
There are two kinds of guardianship:
- Guardian for the person
- Guardian for the person and property
It is important to note that mental retardation is not infrequently associated with Cerebral Palsy, Autism and other multiple disabilities. Such disabilities who also have mental retardation will need legal guardians to represent them both for their person as well as their property.
However, other persons with these disabilities without any mental retardation may perhaps require only a guardian for their person.
Why should a parent get legal guardianship of their child?
Most parents do take full responsibility of the disabled child(ren), continue with their care and protection even after the child has attained 18 years of age. Many persons with Cerebral Palsy, Mental Retardation, Autism and Multiple disabilities do require active care taking throughout their lives. In our country, parents and the family have traditionally been the major care-taking units.
Reasons for taking legal guardianship?
Although, parents may take the full responsibility of looking after their child, even after the child is 18 years old, they will need to legally represent their child as a guardian in many situations such as:
Guardianship may be needed for obtaining loans and concessions.
- Parents may wish to apply for any concession or a scheme meant for persons with disability. In such cases they may require to show that they are the legal guardians of their child.
- As an example, the National Handicapped Finance Development Cooperation has introduced an income generation scheme for the benefit of persons with mental retardation, cerebral palsy, autism and multiple disabilities. If this scheme is accessed by the parents, they would be required to prove their guardianship status.
Guardianship may be needed for managing investments.
- Parents who are unaware of the new laws may not wish (wrongly) to make investments or manage them for the benefit of their child(ren) with disability. For example, during one workshop, it was shared by the parents of a child with mental disability that they had bought property in their child’s name. By doing this they had hoped that this investment would be used to look after their son when they could no longer do so. When their son turned 18, the property that was in his name, could not be legally managed by him. Under the earlier laws, the parents were no longer the legal guardians of their son and therefore could not manage the property on his behalf. This meant that they could not undertake actions such as renting the property. Under the NTA, parents can now remain guardians of their child even after he or she is over 18 years of age. They can therefore, manage the property on such child’s behalf. The property can be invested and it can remain in the name of the person with disability. This can be seen as a step in ensuring that an investment is actually used for the benefit of the person with mental disability.
- For opening and operating bank accounts in the name of the disabled child will need to prove the guardianship after 18 years of age. For example, Saurav is a 16 year old child with autism. His mother has opened a bank account in his name. However, when Saurav turns 18 his mother in general would not have the legal authority to operate his account. In order to do so, she would need to get the legal guardianship.
To safeguard the interest of disabled when involved in a crime.
- If for any reason, the person with disability gets involved in any criminal activity, or for some reason goes to jail, he would need a legal guardian to act on his behalf.
To ensure support an guardianship even after the death of parent(s).
- The majority of the parents worry about “what will happen to my child after me?” Knowing that other persons can also be guardians of their child can alleviate this worry. Under the National Trust Act there are provisions for monitoring of guardians. Parents should be aware that they have an option to open a trust(s) for their child.
Who Else Can Ask For Appointment Of A Guardian And Be Appointed As A Guardian
- Under the National Trust Act, apart from parents, a disabled person’s relatives and registered organizations can also take the initiative to have a guardian appointed for a person with disability.
- Parents are the first national choice for guardianship of their child. It is important to note that either one of the parents can be a guardian, but it is preferable to have a joint guardianship.
- In certain situations when the parents are unable to look after their child, such as poor healt h, they can nominate a person of their choice to assume the guardianship.
Relatives seeking guardianship
In case the parents are not available, or die unexpectedly so that there is no guardian left, a relative can either seek guardianship for oneself or ask the local level committee to appoint another guardian for the child. A relative could include- a sibling, grand parents, maternal and paternal uncles and aunts.
Organizations seeking guardianship
In case there is a child with disability who is fo und abandoned, a registered organization could move an application stating that a guardian should be appointed for the person.
A registered organization can also become the guardian. The local level committee can also ask a registered organization to take a guardianship of a destitute or abandoned person with disability.
Such registered organization could be:
- A non-government organization working in the area of disability
- A registered parents association
- An organization of persons with disability
Procedure for Getting Guardianship
A parent or relative requires to move an application (Form-A) under Rule 16 (i) to the Local Level Committee asking for appointment of a Guardian.
The Form-A has details regarding the:
- Person with Disability (Name, age, nature of disability, address)
- The proposed Guardian (Name, age, relationship with the ward, address)
- Nature of Guardianship required i.e., whether it is for:
- The person or the person and property
The Other requirements are:
- A disability certificate
- 2 witnesses, who have to sign.
- Consent of the person proposed to be appointed as the guardian and the consent of the natural guardian (i.e. the parents, if available).
Who Can Be a Guardian
- A person whose name is suggested as a guardian can be appointed only if:
- He /she is a citizen of India
- Is not of unsound mind or currently undergoing treatment for a mental illness
- Does not have a history of criminal conviction
- Is not a destitute and dependent on others for his own living; and
- He / she has not been declared insolvent or bankrupt
Procedure for Removal Of A Guardian
A guardian of a disabled person can be removed if any parent, relative or a registered organization applies to the local level committee, in a prescribed format, stating that the guardian is:
- Abusing or neglecting a person with disability and / or
- Misappropriating or neglecting the property.
Source: A Handbook for Parents of Children with Disabilities