Download - Legal Guardianship.122111647

7/31/2019 Legal Guardianship.122111647

1/20

1

A HANDBOOK ON LEGAL GUARDIANSHIP

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. Theguardian takes all legal decisions on behalf of the person and the property of the ward. The occasionfor 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 mentaldeficiencies is unable to take care of himself or his property.

From early times, the condition of minority has been the ground for appointment of guardiansin all societies. This is due to the fact that a minor person is considered unfit to take decisions forhimself, which can be binding on him as regards others. Therefore, a minor person is treated in lawas incompetent to enter into contract with a person who is an adult. In all matters therefore, aminor has also been considered unfit to represent himself except through his guardian. A guardiantakes decision on behalf of the minor for protecting the interests of the minor and his property.

KINDS OF GUARDIANSHIP: -

1. NATURAL GUARDIAN

Natural guardian denotes the natural or biological parent of a child. Under the law ofminority and guardianship, a father is the natural guardian of a child and can represent him in allmatters affecting the child including his rights and interests. If the father is no more, it is the mother

who becomes natural guardian of the child. However, under the minority law a step-father or step-mother cannot become the guardian of a child. Where a son is adopted the adoptive father becomesthe guardian of the Child. Such guardianship comes to an end after the child completes 18 yearsof age, which is the age of adulthood.

2. COURT APPOINTED GUARDIAN

Under the existing law of minority and guardianship, it is open to any person (includingparents and relatives) to submit an application to the District Judge within whose jurisdiction theapplicant person and the child is living, for an order to appoint any person to act as the guardianof the minor both as to his person as also as to his property. The Court has to be guided by the

welfare of the minor in approving appointment of a particular person as the guardian of the minor.It is also possible for any person (including the parents and the relatives) to seek a declaration fromthe court that a natural guardian or other person is the guardian of a minor. While appointing aguardian, the court has to lay down the duties of the guardian. The law provides for certainlimitations and restrictions on the right of a guardian who deals with the property of a minor, and

this could be done only with prior consent of the court which has appointed him as the guardian.A guardian appointed by the court may seek to resign take discharge or may by reason of death orremoval cease to act as guardian. Once the minor attains majority, the appointment of guardianceases.

3. TESTAMENTARY GUARDIAN

Under Section 60 of the Indian Succession Act, 1925, it is open to a father of a minor to appointa guardian of the minor by writing a Will in which it may be indicated that a certain person may


2/20

2

become the guardian of the minor in the event of the death of the father. The guardian so appointedunder the Will is described as a testamentary guardian. However, the Will takes effect only afterthe death of the father and the guardianship of the minor son ceases with his attaining adulthood.

DISABILITY AS A GROUND FOR LEGAL GUARDIANSHIP

We have seen earlier that the guardianship of parents as the natural guardians or guardiansappointed or declared by the Court or by Will lasts till the minority of the child. There has beena good deal of concern on the part of parents who have disabled children. Even after such childrenbecome adult by age, the parents are not treated as natural guardian on behalf of such disabledchildren. As a result, there has been considerable uncertainty about the guardianship of persons withdisability who are adults. A person even though disabled in certain respects may have properfaculties to take decisions after adulthood has arrived, in which case there may be no difficulty inhis representing himself in all matters affecting his rights and interests. But there may be persons

with disability who because of a combination of mental and physical deficiency would require thecare and protection of a guardian. There was no provision in the law for appointment of guardiansfor such disabled adults. In the case of those persons with autism, cerebral palsy, mental retardationand multiple disabilities, the doors have opened for appointment of legal guardian with the enactmentof the National Trust for welfare of persons with autism, cerebral palsy, mental retardation andmultiple disabilities Act, 1999.

SPECIAL SITUATION OF PERSONS WITH AUTISM, CEREBRAL PALSY, MENTALRETARDATION AND MULTIPLE DISABILITIES

Persons with autism, cerebral palsy, mental retardation and multiple disabilities are in a specialsituation as even after they have acquired 18 years of age, they are not always capable of managingtheir own lives or taking legal decisions for their own betterment. Therefore, they require someoneto represent their interests in the legal areas throughout their lives. However, in cases of cerebralpalsy and multiple disability, there may be a need for only limited guardianship because of theavailability of enabling mechanisms and/ or scientific facilitations which enable such persons tofunction with varying degrees of independence.

As may be seen, when such children are below 18 years of age, parents take most of theirdecisions such as which school the child will attend, where to take the child for medical help and

what kind of investments are to be made for the child. Even if the child is capable of putting downhis signature, such signatures will have no legal sanctity.

Before the National Trust Act, 1999 parents of such offsprings with the above named disabilitieswere not empowered to represent their children after they were eighteen years of age and they hadto approach the courts to get the guardianship of their children in special circumstances. On theother hand, such persons with disability are not always able to take any decision for their betterment.

In the absence of continued and varied exposure to society through early adulthood, the capacityof informed decision making in their case is not fully developed and they therefore require legalguardianship. The National Trust Act, 1999 for the first time enables persons with the abovedisabilities to have a guardian appointed to represent him/her throughout their lives. At present theambit of the above Act covers only the above named disabilities.

WHY IS LEGAL GUARDIAN NECESSARY FOR PERSON WITH DISABILITY

It needs to be understood that a person with any of the aforesaid four disabilities may requirelegal representation in several areas of life depending upon the facts of his situation. For instance,


3/20

3

such person may need physical, medical and social care and maintenance at all times in the courseof his day to day living. The guardian may be appointed for the care of such person who thusremains protected. Apart from the care and protection required by a person with disability from theguardian, there may be other needs of such persons which relate to his property rights, family rights,rights of succession to property right to education, right to privacy and development or his legal,social and constitutional rights. To avail of and secure such rights it is necessary that such person

have a legal guardian appointed. Some of these instances where he or she may need a legal guardianmay be seen thus -

1. Guardianship may be needed for loans and concessions -

Such persons with disability may want to apply for concessions or avail of special schemesmeant for persons with disability. Their legal guardians can effectively represent them in thesematters. For example, the National Handicapped Finance Development Corporation has introduced

various income- generation schemes for the benefit of persons with mental retardation, cerebralpalsy, autism and multiple disabilities and for their parents. Since a large number of such personsmay be unable to legally access such schemes on their own, the schemes can be accessed by the legalguardians on behalf of their wards. Parents as legal guardians can represent them in such matters.

2. Guardianship may be needed for managing investments -

Parents as legal guardians may want to make investments and manage them for the benefitof their son or daughter with the above disabilities. For example, a parent may have purchasedproperty in the name of their mentally retarded child as his natural guardian during his minority.By doing this they had hoped that this investment will be used to look after their son in the futureor when they themselves will not be there. When their son turned 18 years old, the property that

was in his name could not be legally managed by him. Neither could such person sell or rent theproperty .The scenario has changed today. Under the National Trust Act, the parents can getthemselves appointed as legal guardians and deal with the property in the sons name after he hasattained 18 years of age. The property can continue to remain in the name of the son with disabilityand in this way it can be ensured that the investment is actually used for the benefit of the person

with disability.

3. For Opening and Operating Bank Accounts/Banking Transactions/Post Office Accounts/transactions etc.

If for a minor child with disability a bank account or FDR is opened in the Bank/Post Officeor any other Saving Scheme Subscription invested by the parent, after attainment of 18 years bythe child, the Bank or Post Office will cease to accept the parent as the legal representative of thechild. Legal guardianship obtained under the National Trust Act will enable the child with disabilityto have valid representation before the Bank or Post Office authorities even after he has attained 18

years of age.

4. For subscribing to company shares, mutual funds, bonds, securities in the financial market,prescribed applications invariably ask whether the applicant is a minor and if so, whether theapplication is submitted through a legal guardian. Legal guardians appointed under the NationalTrust Act, 1999 would be able to make such applications for the persons with disability even afterthey have attained 18 years of age.

5. Persons with disability often have to protect their interests in legal cases before the courts oflaw involving their property rights or they may be arraigned before criminal courts or tribunals on


4/20

4

charges of criminal liability. In all these matters it would be of great help if a legal guardianduly appointed under the National Trust Act is available to represent such person withdisability.

6. A person with disability may like to get life insurance, apply to the Development .Authoritiesfor allotment of land or flats. May have to enter into agreements with Builders, take on rent of lease

properties, avail of quotas reserved for disabled persons for admissions to institutions, avail ofconcessions made available by the Government or other Authorities to persons with disability in ahost of matters, may enter into partnership with other persons for doing business even as a dormantpartner, seek permissions from authorities, seek licenses and approvals, file his income tax returnsand pay taxes, apply for telephones, electricity connections, water connections, mobile and internetconnections, pay property taxes and get assessments done of his property and income, appointlawyers to defend himself before courts and; other authorities, apply for passport, and like this theremay be a whole lot of other needs which would require the appointment of a legal guardian forthe care and protection of a person with disability .

BOARD OF THE NATIONAL TRUST

Under the provisions of the National Trust Act, 1999 the National Trust has been constituted bythe Central Government as a legal entity. The general superintendence, direction and managementof the affairs and business of the Trust vests in a Board consisting of the Chairperson, 9 personsfrom registered organizations, 8 Government Officials of the rank of Joint Secretary to the Governmentof India and 3 persons representing trade and industry. The objects of the Trust is to enable andempower persons with disability facilitate support to registered organizations, deal with problemsof disabled persons who do not have family support, promote measures for their care and protectionin the event of loss of parents and guardians, evolve procedure for appointment of guardians andtrustees so that equal opportunities, protection of rights and full participation of such persons isensured.

CONSTITUTION OF LOCAL LEVEL COMMITTEES

Under the provisions of the National Trust Act, 1999 the Board of the Trust has to constituteLocal Level Committees (LLCs) for various districts for periods of three years at a time. TheseLLCs have to be headed by an officer of the rank of District Magistrate or District Commissionerof a district, a representative of a registered organization working in the areas of disability coveredunder the National Trust Act, 1999 and a person having 40% of any disability.

The LLCs have to meet at least once in three months. The Committee will receive applicationsfor appointment of guardians and consider and appoint guardians or remove guardians so appointedin accordance with the provisions of the Act, Rules and Regulations made under the said NationalTrust Act, 1999. The LLC is not a court of law but it has to discharge quasi-judicial functions which

implies that the Committee will consider and dispose issues of guardianship with proper applicationof mind and after following principles of natural justice.

WHO CAN APPLY FOR APPOINTMENT OF LEGAL GUARDIAN?

Under the National Trust Regulations, the following persons can apply for appointment ofguardians before the Local Level Committee: -

a) The natural parents of the person with disability may apply jointly for being appointed as thelegal guardian for any reason, one of the parents is not .there due to divorce, separation, death


5/20

5

or imprisonment, the other available parent will apply singly and give the reasons as to whyapplication is made singly. Proof as to one of the parents not being there is also to be providedto the Committee. Some parents (or one of them) may be too sick or infirm to be able todischarge any duties of a legal guardian and in that case also, proof of such condition mustbe provided to the Committee to enable it to make up its mind.

b) If the parents are not alive or both have been imprisoned or are incapable of discharging theduties of a legal guardian or are themselves dependant on others, the application for guardianshipcan be moved before the Committee by the siblings of the person with disability. Even in thiscase, the siblings will have to apply jointly and in the event of one sibling applying singly, no-objection letters may be procured from the other siblings and submitted to the Committee.It will also be necessary to submit the reasons as to why all the siblings are not submittingtheir application jointly. Siblings include stepbrothers and stepsisters also.

c) In the absence of parents or siblings, any relative of the person with disability can apply forappointment as his guardian. Such relatives will have to be related to the person with disabilityby blood, adoption or marriage. Proof of such relationship will have to be provided to theCommittee.

d) In case a person with disability has neither any parent, sibling or relative, any voluntaryorganization working in the area of the disabilities covered by the National Trust Act, 1999and registered with the National Trust under Section 12 of the said Act may apply for theguardianship of such person with disability .In such cases it is also open to an LLC to aska voluntary organization to apply for the legal guardianship of such person.

CRITERIA TO BE FULFILLED FOR APPLYING FOR GUARDIANSHIP

All persons who apply for appointment of legal guardianship must fulfill the followingcriteria.

They must be more than 18 years of age on the date of the application for guardianship.

They must be citizens of India and not of any other country even if they may be persons ofIndian origin.

They must be of sound mind and are not undergoing treatment for mental disorders.

They should not have any record of Criminal conviction and generally be persons of goodreputation.

They should not be themselves dependant on others for their living nor be destitute themselves.

They should not be declared as insolvent by any Court of law.

The Local Level Committee will look into all the aspects of the applicant to satisfy itself thatthe applicant is a person fit enough to be entrusted with the duties of a legal guardian in thecircumstances of each case.

WHO CAN BE NAMED AS A PROBABLE GUARDIAN IN THE APPLICATION FORM

It is clear that parents, siblings, relatives and voluntary organizations can apply for their ownappointment as legal guardians of a person with disability. In addition parents, siblings and relatives


6/20

6

can also apply for the appointment of any other person of their choice as the legal guardian of aperson with disability.

HOW TO APPLY FOR LEGAL GUARDIANSHIP

The Application for guardianship has to be submitted in Form-A (attached to the National

Trust Rules) stating the name of the person with disability, the name of the proposed guardian, withall their particulars of parentage, age, date of birth, address, nature of disability .The relationshipof the proposed guardian with the ward has also to be stated clearly.

The consent of the proposed guardian (where the applicant and the proposed guardian aredifferent) and the consent of the parent where another person is to be appointed as guardian dueto absolute infirmity of the parents (in the circumstances of a particular case) has also to be obtainedat the reverse of the prescribed Application Form-A.

The following documents will have to be submitted along with the Application 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 ofresidence win 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 furnishedto the Committee.

Disability Certificate issued by any Medical Board or Authority of the State or CentralGovernment/ Government Hospital/Government Psychiatric hospital/ Government authorizeddoctor/Specialist.

In the case of a voluntary organization or institution to be appointed as guardian, the consentof 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. Photocopies canbe submitted duly attested by a Gazetted Officer and whenever necessary the Committee canask 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 additionalsheets may be used for the purpose. Where it is necessary for the Applicant to give details ofthe extent and nature of personal care and maintenance to be provided and the details ofmovable 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 theexistence of such properties.

Where an Application is submitted for appointment of a guardian for a female ward by a maleapplicant, his spouse win have to be appointed as co-guardian. For such applicants therefore,it win be necessary to submit particulars of his spouse. If he has no spouse, the application

will be of no avail.


7/20

7

WHAT DOES THE LOCAL LEVEL COMMITTEES HAVE TO DO AFTERAPPLICATIONS FOR GUARDIANSHIP ARE RECEIVED

The Local Level Committee, after receipt of Applications in the prescribed Form-A along withsupporting documents may in the first instance issue an acknowledgement about the receipt of the

Applications. The Committee will have to examine the Applications and if the same is found to be

deficient in material particulars, it will ask the Applicant to rectify the defects or submit furtherparticulars or provide required documentary proof. On a specified date and time to be notified bythe Committee the Applicant will be heard on his application. Wherever necessary, the Committeemay take the help of experts on particular disability or take the help of State Welfare Officers tomake a preliminary study of the Applicants situation and that of the person with disability .It mayalso itself personally visit the person with disability and examine the actual situation. Upon satisfactionabout the needs and purposes of appointment of guardianship, the Committee will allow the

Application for appointment of guardian. It would follow the Guidelines prepared by the Board forthe conduct of its proceedings as far as possible and complete its proceedings within a reasonableperiod extending to 45 days. Where it finds that there is no merit in the Application, the Committeemay reject the Application but while doing so, it has to give reasons as to why it considered itnecessary to reject the Application. In all cases the Committee will give fair opportunities of hearingto the Applicant. In matters, which are contested by other persons before the Committee, theCommittee will look into all the objections brought before it against the grant of the Applicationand decide the case on the merits of the matter.

CONFIRMATION OF APPOINTMENT AS LEGAL GUARDIAN

After considering an Application for appointment of legal guardian where the Local Level Committeeis of the view -that the Application be allowed, it would issue the Form of Confirmation ofappointment as guardian in Form-B (attached to the National Trust Rules) stating therein that itconfirms its decision of granting appointment of guardian. The Committee will state in this Formthe various obligations, which the legal guardian will have to perform in regard to -

a) maintenance and residential care of the person with disability -

b) management of the immovable property of the person with disability

c) management of the movable property of the person with disability

d) Any other obligation to be performed taking into account the particular facts and circumstancesof the case of the person with disability.

The Committee will also state in this Form that the guardian will submit returns to theCommittee as per Form C and Form D.

All members of the Committee will have to sign the Form-B which will also carry the sealof the particular Committee and the date and diary number/ Application number.

It may not always be possible for the Committee to include all its mandates in the prescribedForm-B in which event it may detail the obligations of the guardian in additional sheets which haveto be part of the Form-B.


8/20

8

OBLIGATIONS OF THE GUARDIAN APPOINTED BY THE LOCAL LEVELCOMMITTEE

It is the function of the Local Level Committee to indicate in its order of appointment theobligations to be fulfilled by the guardian appointed by it. These obligations will pertain to takingcare of the person and/ or property and maintenance of the person with disability. Each case will

have to be dealt with separately by the Committee and such obligations or duties will have to bespecifically pointed out in the order of appointment. The Committee has to ensure that the person

with disability is living in the same area in which the guardian to be appointed is living so that itbecomes possible for the guardian to execute his duties and fulfill his obligations towards the ward.

The Local Level Committee has to ensure that the Legal Guardian appointed by it -

does not make any profit out of his appointment

must look after the ward sincerely and diligently and deal with his property as a man ofordinary prudence would do for the welfare of the person with disability.

must not mortgage, sell, lease, exchange or transfer the immovable property of the person

with disability without the prior permission of the Local Level Committee obtained in thisbehalf.

must see that the interests of the ward as well as as that of his property are well secured andprotected arid that no other person is able to access or deal with such properties or exploitthe ward because of his negligence as a guardian.

does not take advantage of the disability of the ward to his own advantage or neglect hisobligations in having to submit Form of Return in Form-C (attached to the National TrustRules) within six months of his appointment or of submitting account of property and assetsto be furnished within a period of three months of the close of every financial year.

MISCONDUCT ON THE PART OF A LEGAL GUARDIAN

A legal guardian may be removed on grounds of misconduct. The Local Level Committeehas the powers of removing a legal guardian appointed by it if it receives a complaint from anyparent, relative or a registered organization against the legal guardian and on finding that the legalguardian has actually made himself liable for such removal. For such removal the Committee hasto follow certain procedure as laid down under the National Trust Rules.

A legal guardian is liable to removal if he/she is -

a) abusing or neglecting the ward (person with disability)

b) misappropriating or neglecting the property of the ward in his charge.

WHAT AMOUNTS TO ABUSE OR NEGLIGENCE OF GUARDIAN?

A legal guardian would be held to have abused his position or neglected the ward in the followingcircumstances: -

a) Solitary confinement of a person with disability in a room for a long period of time

b) Chaining of the person with disability


9/20

9

c) Beating or treating a person with disability resulting in bruises, skin or tissue damage whichis not due to self injury inflicted by the person with disability himself

d) Sexually abusing the person with disability

e) Keeping the person with disability deprived of his physical needs such as food, water, clothing

f) Misappropriating or misutilisation of the property of the person with disability

g) Non-prevision of or non-compliance of rehabilitation or training programme as specified byexperts ill the held of disability rehabilitation ill the case of voluntary organisations, and

h) Lack of facilities or no provision of trained or adequate staff for meeting the training andmanagement heeds of the person with disabilities in the case of voluntary organisations.

PROCEDURE FOR REMOVAL OF LEGAL GUARDIAN

Whenever the Local Level Committee comes to know either from a written or oral complaint

against the guardian that the guardian is abusing his ward or has misappropriated the property ofthe ward, it shall take steps to investigate the complaint. Such investigation has to be made byconstituting a committee of three persons representing one from parents organization, one fromassociation of persons with disability and a Government official not below the rank of AssistantDirector. This investigation committee after making enquiries will submit its report within 10 daysto the Local Level Committee which will then be sent to the guardian complained against and he

will be asked to show cause why he should not be removed as the guardian. After giving appropriatehearing and opportunity of defense to the guardian, the Local Level Committee will take a decisionin the matter including a decision, to remove the guardian and appointing, another person in hisplace as guardian. The Committee can keep the ward in the charge of a guardian/ fit persontemporarily till regular appointment of a legal guardian has been ordered.

whenever the guardian has reasons to believe that it is not possible for him to do justice tohis duties towards the ward and he wishes to withdraw from guardianship, he may submit hisapplication for withdrawal giving reasons for such withdrawal to the Committee which will

consider such application and pass suitable orders.


10/20

10

FORM -A (see Rule 16(1))

Form of application to the Local Level Committee by a parent, relative or a registeredorganization for appointment of guardian for a person with disability.

From DateTo

The Local Leve1 Committee

Sir / Madam,

.......................is a person with disability and requires protection of his person and property

through a guardian. We hereby request that................................., be appointed as guardian of the said

........................................... for the protection of his person property.

We furnish hereunder further details and request early decision:

1. Particulars of the person to be

provided guardian

NameAge

Nature of disability

Address

2. Particulars of the person proposed

to be appointed as guardian

Name

Age

Relationship with ward, if any

Address

We enclose herewith disability certificate of the said ...........................obtained from ....................

Yours faithfully,

Witnesses: Authorized signatory

1st witness Name :

Designation :

2nd witness Office stamp :

Consent of the person proposed to be appointed Guardian

I hereby agree to be the guardian of the person and property of .........................................and shall

discharge my obligations with due diligence.

Signature

NameDate

Consent of the guardian, if any, to the aforesaid proposal

I hereby agree to the above proposal to appoint .................................... as the guardian of

.........................................................

Signature

Name

Date


11/20

11

FORM- B (see Rule 16(2))

Form of Confirmation of appointment of guardian on application made by (l)aregistered organization, or (2)parent or relative of person with disability.

The Local Level Committee situated at .........................................................................................................

having considered the application made .........................................................................................................

for appointment of ............................................. or ..............................................................hereby confirms

its decision as under:

1. Name of the ward

2. Name of the guardian

3. Obligations of the guardian

a) Maintenance and residential care

b) Management of immovable property

c) Management of movable property

d) Any others

The guardian shall furnish property returns to this Committee as per Form C and Form D specified under theseRules.

Signature(s):

Place:

Date: Stamp:


12/20

12

FORM-C (see rule 27(1))

Form of return covering property of the ward to be submitted by the guardian within 6months of his appointment as guardian

1. Name of the guardian :

2. Name of the ward :

3. Date of appointment of the guardian :

4. Inventory of immovable property of the ward received by the guardian (to be furnished item-wise):

i) Nature

ii) Estimated market value

iii) Location

5. Inventory of the movable property of the ward received by the guardian (to be furnished item-wise):

1) Description

2) Value

6. Pending liabilities of the ward:

1) Nature

2) Amount

7. Pending claims receivable by the ward:

i) Nature

ii) Amount

I declare that the aforesaid information is true and accurate to the best of my knowledge, information and belief.

Place: Signature of the guardian :Date :

Witnesses :

1st witness

2nd witness


13/20

13

FORM-D (see Rule 27(2))

Form of account of the property and assets to be furnished by the guardian within a period of3 months of the close of every financial year.

1. Name of the guardian

2. Name of the ward

3. Immovable property of the ward held by the guardian as on .......... (to be furnished item-wise)

i) Nature

ii) Estimated market value

iii) Location

4. Receipts and Payments statement

For the period from ................... to ..................

Payments Receipts

Heads Amount Heads Amount

5. Movable assets of the ward in the charge of the guardian on ..... (to be furnished item-wise)

i) Nature

ii) Amount

6. Investments redeemed or alienated for consideration during the year ended...............

7. New investments made during the year ended .....................(including renewals)

8. Increase/decrease in the value of movable assets of the ward during the year ended...................

9. Brief explanation for the variation vide (8) above

I hereby declare that the aforesaid information is true and accurate to the best of my knowledge information andbelief.

Place: Signature of the guardian :Date :

Witnesses :

1st witness :

2nd witness :


14/20

14

FREQUENTLY ASKED QUESTIONS ON LEGAL

GUARDIANSHIP & LOCAL LEVEL COMMITTEES

1. Is it mandatory and absolutely necessary that a legal guardian be appointed for eachperson with disability?

Though it is not mandatory to apply for legal guardianship of a person with disability, since theNational Trust Act, 1999 has made provision for such appointment it is always advantageous to applyfor legal guardianship under the provisions of the said Act. Many occasions may arise when a person

with disability has to deal with issues related to himself, his interests and his properties and since hehimself may not always be able to take appropriate decisions in those respects, it would be in his bestinterests if he is represented by a legal guardian in such matters.

2. Can a friend of a person with disability apply for guardianship?

A friend of a person with disability cannot apply for guardianship but he can be appointed as aguardian if a parent or a sibling or a relative applies for the appointment of such a person as legal

guardian.

3. Can a society apply for guardianship of a person with disability?

Under Section 14(2) of the National Trust Act, 1999, it is open to a registered organization tobe the Local Level Committee for appointment of a guardian for a person with disability .The registeredorganization may apply to a registered society, trust or association of persons who have been registeredunder Section 12 of the- National Trust Act by the Board. Such an organization must fulfill the criterialaid down for them to make such application.

4. Is there any period of limitation for applying for guardianship ?

No, there is no period of limitation of time within which an application for guardianship has f tobe made. A parent can apply for guardianship after the child has attained 18 years of age whereassiblings, relatives or registered organizations can apply for guardianship when the parents! siblings!relatives, as the case may be, are not there even when the person with disability is less than 18 years ofage.

5. Can a minor act as a guardian?

A minor is a person who has not completed 18 years of age. Such minor cannot act as guardianof a person with disability under the National Trusts Regulations.

6. Can an application for guardianship be made for a ward who lives abroad?

No it would not be appropriate for a Local Level Committee to appoint a guardian for awardwho is living abroad. Under the Trusts Regulations, both the guardian and the ward must be livingwithin the jurisdiction of the Local Level Committee.

7. What is the position of a testamentary guardian appointed under a Will?

It is open to a father to appoint a guardian for his minor child (who may also be a person withdisability) under a Will or other testamentary instrument. Where such testamentary guardian has


15/20

15

been appointed for a person with disability and that very guardian is intended to be the legal guardianunder the National Trust Act also, the LLC may take into consideration the facts and circumstances ofthe testamentary guardianship. .

8. Can separate guardians be appointed for the care of the person and for the care of theproperty of a person with disability?

Yes, it is possible that guardians are appointed separately for the care of the person and for thecare of the property of the person with disability. However, the Local Level Committee will look intoall the facts and circumstances of the case before taking such a decision.

9. Can separate guardians be appointed for separate properties belonging to the person withdisability?

Yes, it is possible to appoint separate guardians for separate properties belonging to the personwith disability. The Committee will of course look into the facts and circumstances of the case beforetaking a decision.

10. Can a guardian be appointed by compromise?

It is possible that a guardian is appointed by compromise or by mutual consent betweencontending parties. It is up to the Local Level Committee to consider the same in the light of thecircumstances of a given case.

11. Can a foreigner apply for guardianship?

No, a person who is not a citizen of India cannot apply for guardianship of a person withdisability in India under the Trusts Regulations.

12. Can a guardian to be appointed ask for remuneration for acting as such guardian?

No, the guardian cannot seek remuneration for acting as such guardian. However, he can book: administrative Expenses of looking after the property of his ward to the income accruing from suchproperty and it will be the duty of the LLC to see whether only bonafide expenses are being booked tothe income from the property .

13. Can a guardian withdraw from acting as a guardian?

It is open to a guardian to submit an application to the Local Level Committee to withdrawfrom the position of a guardian. The Committee will look into the reasons submitted for such withdrawaland may allow such application with the direction that the guardian must hand over the assets of the

ward in his possession and control to any other guardian appointed in his place.

14. What will happen if the guardian is convicted by a court of law and sent to prison ordevelops serious incapacity to discharge his duties or develops interests adverse to that of theward or leaves the district permanently or becomes bankrupt?

In all of these circumstances, the guardian will be liable to removal and the Local Level Committeewill have to appoint another guardian in his place. It may also place the ward in the charge of a fitperson or institution till a guardian is appointed on regular basis.


16/20

16

QUESTIONS RELATING TO SCOPE OF LOCAL LEVELCOMMITTEE WITH REGARD TO LEGAL

GUARDIANSHIP

1. What is the jurisdiction of a Local Level Committee - territorial and pecuniary?

The territorial jurisdiction of a Local Level Committee will be what may be specified by theBoard under Section 13(1) of the National Trust Act, 1999. The Local Level Committee may beconstituted for such area as may be specified by the Board from time to time. This area may becomprised of one or more districts. It is also open to the Board to alter the area specified by it, thus, theterritorial jurisdiction of the Local Level Committee will extend over the area so specified by theBoard. Applicants for guardianship and their wards will have to belong to those areas and be residingthere. There is no limit as far the pecuniary jurisdiction of the Local Level Committee is concerned.This means that a guardian could be appointed in respect of the property of a person with disability ofany value.

2. Does the Local Level Committee have to give regard to religious or personal laws andcustoms while considering applications for guardianship?

The National T rust Act, 1999 is a secular Act and the Local Level Committee need not giveregard to any religious or personal laws of the applicant or the ward in deciding applications forappointment of guardian.

3. Can the Local Level Committee delegate its powers to any other body or Authority?

The Local Level Committee as a statutorily constituted body cannot delegate its powers to anyother body or authority as no such delegation is implied in the provisions of the National Trust Act,1999 or in its Rules and Regulations.

4. Can the Local Level Committee transfer a case to another Local Level Committee?

A Local Level Committee may return an application for appointment of guardian if the samedoes not fall within the purview of its jurisdiction to the applicant so that the applicant may present thesame before the appropriate Local Level Committee having jurisdiction in the matter. But it cannotitself transfer the case of guardianship to another Local Level Committee.

5. Does the Local Level Committee have any inherent powers as the Courts have?

National Trust Act, 1999 has not bestowed any inherent powers akin to those exercised by thecourts on LLCs. However, considerations of natural justice apply universally and LLCs may reconsider

and amend their own orders if they feel that the ends of justice have not been achieved through theirearlier orders.

6. Can Local Level Committee pass any interim order of protection of person or property ofa person with disability? Can Local Level Committee appoint temporary guardian?

It is open to the Local Level Committee to pass any interim order for the protection of theperson and or property of the person with disability pending consideration of his case for guardianship.It can as an interim measure appoint a temporary guardian in whose charge the person and property of


17/20

17

the person with disability can be given. It will, however, be necessary to convert the interim orders intoabsolute orders and appoint regular guardian in place of a temporary guardian.

7. Can a Local Level Committee appoint Receiver of disputed property?

No, a Local Level Committee cannot appoint receiver of disputed property. It has to refer such

cases to the sub-divisional Magistrate or the civil court.

8. Can a Local Level Committee vary the powers of a guardian after appointing one?

The Local Level Committee can vary the powers of a guardian after having appointed him butthis will depend upon the developments and the circumstances of a given case.

9. Can the Local Level Committee ask for security from the proposed guardian to ensurethat he fulfills his obligations?

A Local Level Committee can ask for security to be provided by a proposed guardian to ensurethat the guardian will fulfill his obligations and in case of any breach thereof, the guardian will be liable

to the Committee for a given sum of money. Normally, such security is given by way of guarantees/undertaking or bonds, which can be enforced.

10. Can a Local Level Committee appoint a guardian without any formal application beforeit?

Where a Local Level Committee finds that a guardian has to be appointed for a person withdisability for whom no formal application for guardianship has been made, it may under Regulation13(4) ask a registered organization to initiate the process of guardianship for such person. Such personmay be a vagrant, destitute or an abandoned person with disability.

11. What about suits filed to restrain Local Level Committee from granting applications for

guardianship?

A Local Level Committee will be bound by any restraint order passed by any Court restrainingit from granting an application for guardianship. Until the restraint order is revoked, a Local LevelCommittee will not be free to proceed with the guardianship case and has to keep it in abeyance.

12. Since Local Level Committee has no powers of Court, will it have any power over thirdparties? Can it summon other persons or take evidence as courts can do?

In order to consider applications for guardianship impartially and fairly, a Local Level Committeemay call for other persons and take their evidence or hear them depending upon the facts andcircumstances of the case. In the event a third person summoned by the Committee does not appear, it

will have to do without the appearance of such person as it has no powers to enforce such presence.The Committee can also take affidavits by way of evidence from witnesses and applicants and allowcross-examination by objectors to guardianship applications.

13. How does Local Level Committee serve notice, as summons?

Though the Local Level Committee cannot issue a summons to a person in the sense of a court,it can send a letter requesting a person to appear before it, or produce any documents or tenderevidence. But it cannot enforce their presence before it.


18/20

18

14. Can a Local Level Committee ask for production of the person with disability before it?

A Local Level Committee can ask for production of a person with disability before it in order toassess the needs of such person with disability.

15. Where proceedings are initiated in two or more Local Level Committees for appointment

of guardian - should one Local Level Committee stay the proceedings in the other?

It will be appropriate for a Local Level Committee to stay its proceedings if a similar proceedinghas been instituted earlier in another Local Level Committee. The proceedings instituted subsequentlymay be stayed. This will be in conformity with the need to avoid multiplicity of proceedings. However,this will depend upon the facts and circumstances of each case.

16. Can a Local Level Committee appoint a guardian for property outside its jurisdiction?

Yes, a Local Level Committee can appoint a guardian for managing property of a person withdisability even if such property is outside its jurisdiction. However, it will have to be clarified .by theCommittee as to how the guardian will manage such property and submit reports and inventories to

the Local Level Committee, which has appointed the guardian.

17. When there is a dispute about the property of a person with disability and there are otherclaimants, what can the Local Level Committee do?

It will be necessary for the Committee in cases of disputes between parties in regard to immovableproperties to ask the contending parties to get the disputes over property resolved by a Civil Court ofrequisite jurisdiction. Till then, appointment of guardian to manage the disputed property will have tobe kept in abeyance.

18. Will a change of religion of guardian or ward affect the Local Level Committees orders ?

Since the National Trust Act is a secular Act, any change of religion of the guardian or the wardsubsequent to appointment of guardian will not affect the orders of the Committee. However, it willbe unto the Local Level Committee to consider such changes in case the changes create obstructions inthe performance of the duties of the guardian or it adversely affects the interests of the person withdisability.

19. What about visitation rights of parents/relatives where another person is appointedguardian?

It will be unto the Local Level Committee which appoints a guardian to enjoin upon the parentsor relatives visitation rights where a non-parent or non-relative person is appointed as a guardian.

20. When a Local Level Committee finds fraud or other offence against guardian, can itcomplain to the Area Magistrate for criminal action?

It is open to the Local Level Committee to complain to the area magistrate to take action if anyact of criminal nature such as fraud, forgery, defalcation or breach of trust is discovered in a given casebefore it. Alternatively, the Committee can request the aggrieved person to institute such complaintand report to the Committee.


19/20

Nat ional TrustFor the Welfare of Persons with Autism, Cerebral Palsy

Mental Retardation and Multiple Disabilities

Ministry of Social Justice& Empowerment

Govt. of India

Mukesh Kacker, IASJoint Secretary

Chief Executive Officer

No. 1/24INAT/LLC/20031.9.2003

To

District Collector/Deputy CommissionerAs Head of the Local Level Committee under the NationalTrust Act for the District of

Sub: Grant of Legal Guardianship under the National Trust Act, 1999 in respect of persons withdisabilities under 18 years of age.

The National Trust has been interacting with district officials and members of Local LevelCommittees of various districts all over the country and these interactions have occasioned a closerlook at the provisions of Section 14 of the National Trust Act and Sections 11 and 12 of the NationalTrust Regulations, 2001, which list the persons/parties who may apply for Guardianship and the persons

who can be appointed as guardians. A flawed interpretation of these Sections was responsible for theview held till now that legal guardian could be appointed only for persons with disabilities above theage of 18. This is not correct.

Section 11 6f the National Trust Regulations, 2001 lists the following types of persons/partieswho can apply for guardianship:

1. Parents

2. Siblings3. Relatives; and4. NGOs .

The restrictions of beyond 18 years of age is meant only for parents. It means that parents canapply for legal guardianship of their wards only after they attain the age of 18. This is so becauseparents, as natural guardians, are also legal guardians of their wards till the age of 18 and, therefore,there is no need for them to apply for legal guardianship till their child attains the age of 18. Thiscondition does not hold good for the other categories of applicants viz. siblings, relatives and NGOsand they can certainly be appointed as legal guardianship even for minors (under the age of 18) in theevent of there being no parents or siblings or relatives as the case may be. In addition, parents, siblings

and relatives can also apply for the appointment of any other person as legal guardian of a minor.

...2/-

The National Trust offers 100% tax exemption to donors u/s 80G (2) (a)(iii)(hj) of the IT Act

IPH Complex, 4, Vishnu Digamber Marg, New Delhi - 110002

Telephone: +91-11-23217412 Fax: 23217414E-mail : [email protected] Website : www.nationaltrust.org.in


20/20

Thus the combined effect, in so far as it relates to appointment of legal guardian forpersons with disability under 18 years of age, of the provisions of Section 14 of the NationalTrust Act and Sections 11 and 12 of the National Trust Regulations, 2001 is as follows:

a) Parent(s) of a person with disability, who is a minor, can apply for the appointmentof a sibling or a relative or any other person or a registered organization as legalguardian of such a minor.

b) If the parents of a person with disability, who is a minor, have either died or desertedhim/her, or have been convicted, then siblings can either apply for the legalguardianship of such a minor or can apply for the appointment of a relative or anyother person or a registered voluntary organization as legal guardian of such a minor.

c) In case there are neither parents nor siblings then a relative can either apply for thelegal guardianship of such a minor or apply for the appointment of any other personor a registered voluntary organization as legal guardian of such a minor; and

d) In case there are neither parents/siblings nor relatives then any registered organizationcan apply for the legal guardianship of such a minor.

The above may please be mind while considering applications for legal guardianship.

(Mukesh Kacker)

Mukesh Kacker, IAS

JS & CEONATIONAL TRUST

Ministry of Social Justice & EmpowermentGovernment of India

4-Vishnu Digamber Marg,New Delhi - 110002

4-Vishnu Digamber Marg,New Delhi-110002

Download - Legal Guardianship.122111647

Top Related