Appoint Guardians for persons with special needs, writes Advocate Dharmananda Deb

//Dharmananda Deb//

In India, children above the age of eighteen years are considered major and custody laws do not apply to them. 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. People with autism, cerebral palsy, mental 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.

The four pillars of the Indian legal regime in this regard are: (1) Guardians and Wards Act, 1890 (GWA); (2) National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (NTA); (3) Rights of Persons with Disabilities Act, 2016 (RPWD); and (4) Mental Healthcare Act, 2017 (MHA). Importantly, while there is some interplay between the legislations, each legislation allows for different procedures for the appointment of a guardian, sets out its own eligibility criteria for becoming a guardian, and delineates the powers of the guardian.
The most important criterion for the guardianship application of an individual with special needs is the age of such individual. The age of the individual determines the applicable law and thereby the powers, roles and responsibilities of the guardian.

Guardians and Wards Act, 1890 (GWA):-A guardianship application for a person under the age of eighteen years may be filed under the GWA. Such an application can be for the guardianship of the minor or his/her property or a combination of both. Under the GWA, the District Court mainly considers the following factors: (1) the welfare of the minor; (2) the age, sex and religion of the minor; (3) character and capacity of the proposed guardian, and his/her nearness as kin to the minor; (4) existing/previous relation of the proposed guardian with minor and/or his/her property; and (5) the preference of the minor, if he/she is capable of making an intelligent decision.

National Trust Act, 1999(NTA):-While the GWA allows for applications of guardianship for minors with varied special needs, the NTA only applies in cases wherein the person is suffering from: (1) autism; (2) cerebral palsy; (3) mental retardation; or (4) multiple disabilities.The NTA specifically defines instances of autism, cerebral palsy and mental retardation, whereas the instance of multiple disabilities means a combination of two or more disabilities out of the following: (1) blindness; (2) low vision; (3) leprosy cured; (4) hearing impairment; (5) locomotor disability; (6) mental retardation; and (7) mental illness. It is important to note that an application under the NTA can be made irrespective of the age of the individual with special needs.The qualifying criteria set out to be a guardian under the NTA are as follows: (1) must be a citizen of India; (2) neither of unsound mind nor undergoing treatment for mental illness; (3) does not have history of criminal conviction; (4) not destitute and dependent on others for his/her own living; (5) has not been declared bankrupt or insolvent; (6) must reside in close proximity to the person with disability; and (7) in case of female ward, a male guardian cannot be a sole guardian.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.

Rights of Persons with Disabilities Act, 2016:- While the NTA is the governing legislation for persons with specific disabilities, the RPWD is applicable for people with all disabilities and thereby, is wider in scope. The RPWD aims to bring about a social change by giving persons with disabilities an opportunity to be legally autonomous and independent, helping them to break the barrier and interact with the society. The legislation states that, whenever there is a clash of opinions on matters concerning persons with disabilities, the person with disability’s opinion shall prevail over that of the persons providing support, like the mother or father

Mental Healthcare Act, 2017:- The MHA has done away with the provision for appointment of a guardian for person or property, which was allowed under its predecessor legislation-Mental Health Act, 1987 (now repealed). As mentioned above, the process of appointment of guardian through order of District Court is available for persons with special needs only under the RPWD, but not for mentally ill persons under the MHA. The MHA attempts to battle the prevalent social stigma of mental illness. For instance, the legislation clarifies that a person with mental illness is not a person of unsound mind.The MHA is well intentioned and attempts to make the battle against mental illness – a participative process. The patient is given the power to make his/her own decisions in a social setting.