Introduction:
Guardianship Act is one of those acts of which not everyone is aware. This was an act that was enforced in order to consolidate and amend the law relating to Guardian and Ward. Rule 16 enables the Local Level Committee, which is led by the District Collector, to receive applications (1). He is further authorized with the power to appoint guardians under Rule 16(2) for individuals with Autism, Cerebral Palsy (CP), Mental Retardation (MR), and Multiple Disabilities. Additionally, it offers a way to keep an eye on and safeguard their rights, including their property.
Understanding what guardianship is:
A guardian is a person who has been designated to take care of another person or his property. He/ She assumes the responsibility of looking after and protecting the person for whom they have been named guardians. All the legal decisions pertaining to the ward and the property of the ward are made by the guardian. The grounds for which a guardian can be allotted include minority (A person who has not completed 18 years of age), a person having physical and mental impairments (Someone who’s unable of taking care of himself/herself). Minority status has always been a prerequisite for guardianship appointments in all societies. This is because a youngster is deemed unsuitable to make decisions for themselves that could have consequences for them and others. As a result, a minor is regarded by the law as being incapable of making a contract with an adult. Therefore, a minor has always been viewed as being unable to represent himself without the help of his guardian. A guardian makes decisions on the minor’s behalf to safeguard his interests and possessions.
Why are there special conditions for special kids?
Autism (ASD- autism spectrum disorder), cerebral palsy (CP), mental retardation (MR), and people with multiple disabilities are in a unique predicament because presuming that they attain an age of majority, they may not always be able to manage their own lives or make decisions that are in their best interestlegally. As a result, individuals can need a representative in legal issues throughout their entire life to protect their interests. However, there might only be a limited requirement for guardianship in situations of cerebral palsy and other various disabilities because such people can function to varying degrees of independence due to the availability of enabling mechanisms and/or technological advancements.
Eligibility to apply for guardianship:
Section 11 of The Guardians and Wards Act, 1890provides for the procedure on the admission of application on the grounds that:
- Both parents may jointly apply for guardianship of their or, as the case may be, his ward after the age of 18 or, in the absence of one parent owing to death, divorce, legal separation, desertion, or conviction, may apply separately.
- Siblings, including half-and-stepsiblings, may jointly or singly seek for guardianship of a disabled family member in the event of the demise, abandonment, or conviction of both parents (the justification for a single application must be addressed separately).
- A relative may apply for guardianship in the case that sub regulations (1) and (2) above are not applied.
- Any recognizedorganization may submit a guardianship application in the absence of sub-regulations (1), (2), and (3).
- In the event of a poor or abandoned person, the Local Level Committee may instruct a registered organization to submit a guardianship application.
Who may be indicated by the applicant as guardian:
Section12provides for the following requisites-
- Both parents jointly, or separately in the event of one being absent due to death, divorce, legal separation, desertion, or conviction, may apply to the Local Level Committee to be appointed as guardians of their or their disabled ward beyond the age of 18, and in that case, the application will be accepted unless the parent is disqualified due to:
- a) losing citizenship.
- b) lack of soundness of mind.
- c) being considered an offender by the court of law; or
- d) being a destitute.
2) In order to be considered as a guardian, the applicant may name siblings, any family member, another person, or a recognised institution; however, in the case of institutions, the sub-regulations (3), (4), and (5) must be followed (5).
3) If an institution is to be considered a guardian, it must be authorised to care for the individual and registered with the appropriate legal authority.
5) The alternative care required by sub-regulation (4) must be placed under permanent guardianship within a year and not be of a permanent character.
6) When a guardian is appointed, the applicant must already be residing nearby or within proximity to the ward’s previous residence.
7) For female wards, no single male guardian may be appointed; instead, the male guardian is awarded joint guardianship with his spouse, who serves as the master co-guardian.
Various documents required for Legal Guardianship Procedure:
- Legal Guardianship Application available in The National Trust website.
- Consent form for the guardian wherein they consent to taking good care of the person.
- Birth certificate of the person with disability.
- Certificate of residence of the person with disability.
- Disability certificate.
- The address proof of the guardians.
- Declaration of all assents of the person with a disability certificate if any.
Grounds on which a guardian can be removed:
If a person with a disability or a registered organisation notices that the guardian is misusing or ignoring the property, abusing a person with a disability, or both, it may follow the required procedure to apply to the committee for the guardian’s removal.
My take on this law:
This law is very instrumental as it is a means of empowerment by providing certain legal rights to the guardians. It also helps to keep in account the kids who need special care; for instance, kids suffering from Mental Retardation (MR), Cerebral Palsy (CP), Autism spectrum disorder (ASD) etc. But there is always scope for improvement, hence one aspect that could be rectified is providing a specialized counsellor to the parents/ guardians to ensure that they raise the kids properly. Apart from this, all the provisions of this act are in place and this law can be considered to be one of the most important laws created for the betterment of all.
CONCLUSION:
Guardianship Act is one of the most important acts for entitling legal rights to Guardians. Even if it is not required, applying for legal guardianship of a person with a handicap under the terms of the National Trust Act, 1999 is always favourable because the Act created provisions for such an appointment. A situation may develop where a person with a disability must make decisions for himself, his interests, and his property. Since he or she may not always be able to do so, it would be desirable if that person were represented in certain situations by a legal guardian. According to me, this act facilitates easy entitlement of wards to the guardians and hence every citizen needs to be aware of such acts for a better understanding of the process of guardianship.
Author(s) Name: Nidhi Kamath (Institute of Law, Nirma University)
