What is Guardianship?
A guardian is a person who is appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed the guardian. The guardian takes all 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, a person who has not completed 18 years of age. It can also refer to guardianship of a person who because of physical and mental deficiencies is unable to take care of himself or his property. A guardian takes decision on behalf of the minor for protecting the interests of the minor and his property.
Source - Guardianship and Wards Act, 1890. Indian Contract Act-1872. Mental Health Act 2017
Special situation of persons with Autism, Cerebral Palsy, Mental Retardation and Multiple disabilities
Persons with autism, cerebral palsy, mental retardation and multiple disabilities are in a special situation as even after they have acquired 18 years of age, they may not always be capable of managing their own lives or taking legal decisions for their own betterment. Therefore, they may require someone to represent their interests in the legal areas throughout their lives. However, in cases of cerebral palsy and multiple disabilities, there may be a need for only limited guardianship because of the availability of enabling mechanisms and/ or scientific facilitations which enable such persons to function with varying degrees of independence.
Source - As per opinion of Disability Experts that NT Disabilities are conditions which cannot be cured and are not a disease. As per Legal Advice of ALA.
Is it mandatory and absolutely necessary that a legal guardian be appointed for each person with disability?
Though it is not mandatory to apply for legal guardianship of a person with disability, since the National Trust Act, 1999 has made provision for such appointment it is always advantageous to apply for legal guardianship under the provisions of the said Act. Such occasion may arise when a person with disability has to deal with issues related to himself, his interests and his properties and since he/she may not always be able to take appropriate decisions in those respects, it would be in the best interests if represented by a legal guardian in such matters.
Guardianship under the National Trust Act
Under section 14 of the National Trust Act, the Local Level Committee headed by the District Collector is empowered to receive application in Form A under Rule 16(1) & appoint guardians in Form B under Rule 16(2) for persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities. It also provides mechanism for monitoring and protecting their interests including their properties.
Duties of Guardian
Section 16 (1) states that “Every person appointed as a guardian under section 14 shall, within a period of six months from the date of his appointment, deliver to the authority which appointed him, an inventory of immovable property belonging to the person with disability and all assets and other movable property received on behalf of the person with disability, together with a statement of all claims due to and all debts and liabilities due by such person with disability”.
Section 16 (2) state that “Every guardian shall also furnish to the said appointing authority within a period of three months at the close of every financial year, an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him”.
Who may apply for guardianship
Section 11 of Regulations –
- Both the parents may jointly, or, in the event of the absence of one due to death, divorce, legal separation, desertion or conviction, may singly apply for guardianship of their or as the case may be his ward beyond the age of 18 years.
- In the event of death, desertion, conviction of both the parents, the siblings (including half and step siblings) jointly or singly (reason of single application to be explained separately) may apply for guardianship of a disabled member of the family.
- In the event of non-application of sub-regulation (1) and (2) above, a relative may make an application for guardianship.
- In the event of non-application of sub-regulation (1), (2) and (3), any registered organization may make an application for guardianship.
- The Local Level Committee may direct a registered organization to make an application for guardianship in case of a destitute or abandoned person.
Section 12 of Regulations - Who may be indicated by applicant as guardian
- Both the parents jointly, or, singly in the event of the absence of one due to death, divorce, legal separation, desertion or conviction, being natural guardian of minor may apply to the Local Level Committee to get themselves or himself as the case may be, appointed as guardian of their or as the case may be, his disabled ward beyond the age of 18, in which case the application shall be accepted unless the parent is disqualified on account of
- loss of citizenship;
- being of unsound mind;
- being convicted by a court of law; or iv. being a destitute.
- The applicant may indicate siblings, or any member of the family or any other person or a registered institution for consideration as a guardian and in case of institutions, the conditions of eligibility of institutions shall be as stipulated in subregulations (3), (4) and (5).
- In the case of considering the institution as a guardian, the institution must be registered under a law and be capable of providing care of the person.
- In the event of institution ceasing to be registered under a law or stops functioning, or is found otherwise unsuitable, the Local Level Committee shall make alternative arrangements for the foster care of any such inmate or the ward, who is under the care of any such institute.
- The alternative care under sub-regulation (4) shall not be permanent in nature and shall be placed by permanent guardianship within a period of one year.
- The applicant must be living in the vicinity or close proximity to the place where the ward has been habitually living at the time of appointment of guardian.
- No single male shall be considered as a guardian for a female ward and in the case of female wards, the male person shall be given co-guardianship with his spouse, who shall be master co- guardian.
Form A under National Trust Rules is to be filled in for applying for legal guardianship. To access the Form A, click here.
The application is to be processed by a Local Level Committee (LLC). The Local Level Committee is responsible for appointment of any person of his choice to act as a guardian of the persons with disability.
Documents to be Attached with Form A
It is the prerogative of the LLC to ask for any number of supporting documents as per Section 13(2) of National Trust Regulations for deciding the issue of Guardianship. Hence a guiding list is given below to be submitted along with Form-A.
- Birth Certificate of the person with disability as may be issued by the Municipal Authorities/ Registrar of Births/ School Authorities/ Educational Board.
- Certificate of residence of the person with disability as may be issued by the Ration Office, Electoral I.D Card, Passport Office etc. Most often, till the age of 18 years the proof of residence will be available in the Ration Card issued in the name of the father of the person with disability. If the address has been changed effective proof of the same must be furnished to the Committee.
- Disability Certificate issued by any Medical Board or Authority of the State or Central Government/ Government Hospital/ Government Psychiatric hospital/ Government authorized doctor/ Specialist.
- In the case of a voluntary organization or institution to be appointed as guardian, the consent of the parents has to be taken on the reverse of the Application Form.
- It is not necessary for the Applicant to submit original documents of proof. Self Attested Photocopies can be submitted and whenever necessary the Committee can ask for production of the originals for verification.
- It is also necessary for the Applicant to state reasons for submitting application singly (where such application is submitted singly). This may be stated in the Application Form or additional sheets may be used for the purpose. Where it is necessary for the Applicant to give details of the extent and nature of personal care and maintenance to be provided and the details of movable and immovable property which have to be managed and taken care of by the guardian, the same may be stated in additional sheets of paper together with proof of the existence of such properties.
- Where an Application is submitted for appointment of a guardian for a female ward by a male applicant, his spouse will have to be appointed as co-guardian. For such applicants therefore, it will be necessary to submit particulars of his spouse. If he has no spouse, the application will be of no avail.
Click here to download the Consent form for appointed Guardian.
Click here to download the Consent form for the guardian.
Guidelines for receiving, processing and confirmation of application for appointment of a guardian
- The Local Level Committee shall receive applications for appointment of guardian in Form A under the rules.
- On receipt of the application for appointment of guardian, the Local Level Committee shall scrutinize the application and call for any supporting document or information that may be necessary for deciding the issue of guardianship.
- In case of application received from parents for guardian other than themselves, the Local Level Committee may decide to get parent’s counselling in any manner, it may decide to determine the genuineness of having a guardian other than parents.
- If parents or relatives are not available for the person with disability who is in need of guardian, because of being a vagrant or destitute or found abandoned, member or members of the Committee may ask for applications from a registered organization to initiate the process of guardianship for the person.
- The person with disability must be assessed by the Local Level Committee, to determine the genuineness of the need of guardianship and it shall be open to the Local Level Committee to seek the assistance of technical personnel or their services to determine the need.
- The Local Level Committee shall satisfy itself about the capabilities and the suitability of the person on whom guardianship is being conferred.
- The application for guardianship for personal care and maintenance shall be accepted to cover the following areas, namely –
- Food, clothing and shelter needs;
- Health care needs;
- Religious needs;
- Education, training and employment needs;
- Leisure and nutrition needs;
- Protection from exploitation and abuse;
- Protection of constitutional and human rights; and
- Medical and surgical needs.
- The confirmation of appointment of the guardian on application made by (1) a registered organization; or (2) the parent or relative of a person with disability shall be made in Form B under the rules.
Apart from Hard Copy system online Legal Guardianship Module is available for LLCs for processing Applications for Guardianship and Appointment thereof to form National Depository of Legal Guardianship Certificates (NDLGC).
Removal of Guardian
- Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is-
- abusing or neglecting a person with disability; or
- misappropriating or neglecting the property, it may in accordance with the prescribed procedure apply to the committee for the removal of such guardian.
- Upon receiving such application the committee may, if it is satisfied that there is a ground for removal and for reasons to be recorded in writing, remove such guardian and appoint a new guardian in his place or if such a guardian is not available make such other arrangements as may be necessary for the care and protection of person with disability.
- Any person removed under sub-section (2) shall be bound to deliver the charge of all property of the person with disability to the new guardian, and to account for all moneys received or disbursed by him.
Explanation -For the purposes of this Chapter, the expression "relative" includes any person related to the person with disability by blood, marriage or adoption.
Section 17 of National Trust Rules - Procedure for removal of Guardian
- The local level committee upon receiving an application for removal of a guardian from a parent or a relative of a person with disability or a registered organisation on the grounds specified in clauses (a) and (b) of sub-section (1) of section 17 of the Act, shall appoint a team of investigators consisting not less than three persons.
- The team shall consist of one representative of parent organisation, one representative of the association for the disabled and one Government official associated with disability not I below the rank of Assistant Director.
- While taking a decision on the appointment of guardian, the local level committee shall ensure that the person whose name has been suggested for appointment as guardian is :
- a citizen of India;
- is not of unsound mind or is currently undergoing treatment for mental illness;
- does not have a history of criminal conviction;
- is not a destitute and dependent on others for his own living; and
- has not been declared insolvent or bankrupt.
- In case of an institution or organisation being considered by the local level committee for appointment as a guardian, the following guidelines shall be followed :
- the institution should be recognised by the State or the Central Government;
- the institution should have a minimum of 2 years’ experience in offering disability rehabilitation services including running residential facilities or hostel to the respective c’ category of persons with disability;
- the residential facility or hostel for persons with disabilities shall maintain minimum standards in terms of space, staff, furniture, rehabilitation and medical facilities as specified by the Board. The team of investigators while investigating a complaint for assessing the abuse or neglect of a person with disability shall follow the guidelines specified by the Board.
- The following Acts of commission or omission shall constitute abuse or neglect on the part of the guardian, namely -
- Solitary confinement of person with disability in a room for longer period of time;
- chaining of the person with disability;
- beating or treating a person with disability resulting in bruises, skin or tissue damage (not due to his injurious behaviour indulged by the persons with disabilities);
- sexual abuse;
- long deprivation of physical needs such as food, water and clothing;
- no provision or non-compliance of rehabilitation or training programmes as specified by experts in the field of disability rehabilitation;
- misappropriation or misutilisation of the property of the person with disability; and
- lack of facilities or no provision of trained or adequate staff for meeting the training and management needs of the persons with disabilities.
- The team of investigators shall submit their report within a period of ten days.
- Upon receiving the report of the investigation team, the local level committee shall take the final decision within the period of ten days on the removal of the guardian against whom the complaint has been received after giving the said guardian an opportunity of being heard.
- The local level committee shall record in writing its reasons for removal of the guardian or rejection of the application.
Source : The National Trust
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