A person above eighteen years of age is considered capable of making decisions in his life and material affairs. However, an adult may not be in a position to take his own decision in certain circumstances like mental disability. In such a situation law provides for appointment of a guardian for the person. The present statutory framework does not provide for appointment of guardian for the property of an adult under disability, permanent or temporary. A person suffering from severe illness affecting his reasons may survive on life support for months. Such situations the leave material affairs of the person in an indeterminate state. The person may not be able to withdraw money from his bank account or sell his property for funding his treatment or exercise his right as shareholder in a company.
Existing legal provisions
The Guardians and Wards Act, 18901 deals with appointment of guardian for person and property of minors. The Hindu Minority and Guardianship Act, 19562 recognises parents as the natural guardian for minor for his person and property. The Hindu Minority and Guardianship Act, 1956 enables a natural guardian to appoint by his will a guardian for person and property of the minor. While dealing with the property of a minor, a guardian under both the Acts, is required to take prior permission of a court. A guardian is enjoined to deal with property as carefully as a man of ordinary prudence would deal with it, if it were his own and to do all acts which are reasonable and proper for the realisation, protection, or benefit of the property.
One of the objects3 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999 (for short the “National Trust Act, 1999) is to evolve procedure for the appointment of guardian and trustees for persons with disabilities. Section 144 of the National Trust Act, 1999 provides for appointment of a guardian of a person with disability on application of a parent, relative or registered organisation to Local Level Committee constituted under the Act. The guardian is required to have care of the person and is responsible for the maintenance of his property. Further, such guardian is required to submit inventory of property belonging to the person. Also, he is required to submit account of the property and assets in his charge, the sums received and disbursed on account of person with disability.
The Mental Health Act, 19875 in Chapter VI, provided mechanism to inquire into whether alleged mentally ill person was incapable of taking care of himself or of managing his property or both. Upon inquiry, the District Court had the power to appoint guardian to take care of the person and of a manager for the management of the property. The Mental Health Act, 1987 has been repealed by the Mental Healthcare Act, 20176.
The Mental Healthcare Act, 2017 deals with the medical treatment of persons with mental illness. Mental illness has been defined as substantial disorder of thinking, mood, perception, orientation, or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet ordinary demands of life, mental conditions associated with the abuse of the alcohol and drugs. Section 57 of the Mental Healthcare Act, 2017, entitles a person to make an advance directive in writing specifying the way such person wishes to be cared for and also the way such person wishes not to be cared for mental illness. The advance directives are registered in online register which may be made available to mental health professionals. The person may appoint his nominee as representative who has the power to give directions in treatment considering the person's best interest. The Mental Healthcare Act, 2017 does not contain provision for appointment of a guardian for property of mentally ill person similar to the provision in repealed Mental Health Act, 1987.
The Rights of Persons with Disabilities Act, 20168 deals with a person with long term physical, mental, intellectual, or sensory impairment which hinders his full and effective participation in society equally with others. Section 149 of the Act has provision for appointment of limited guardian by the District Court or designated authority to take legally binding decisions on behalf of person with disability in consultation with such person. Limited guardianship has been explained as a system of joint decision which operates on mutual understanding and trust between the guardian and the person with disability. Limited guardianship is limited to a specific period, specific decision and situation and operates in accordance to the will of the person with disability.
The laws discussed are not adequate to deal with a situation when a person is in intensive care unit lying unconscious, not being able to operate his bank account to fund his treatment or take care of his property.
Usually, in cases of a person being in a state of incapacity or disability on account of being in a comatose condition or vegetative state, next of kin such person have approached High Courts invoking their jurisdiction under Article 226 of the Constitution10. In Sairabanu Mohammed Rafi v. State of T.N.11, the Madras High Court appointed the wife as guardian of the husband for the purpose of dealing with his immovable properties and also to operate his bank account. The husband was in coma. The Court observed that there is no legal provision to appoint a guardian in such situation. The Court also cautioned that the petitioner could have approached the civil court by way of common law remedy.
In Shobha Gopalakrishnan v. State of Kerala12, the Division Bench of the Kerala High Court, in words of P.R. Ramachandra Menon, J. responded to an “SOS call” (save our souls call) from two sinking families of the persons lying in coma who were in need of funds to provide treatment and life support to the victim. The Court held that a person in coma does not come with purview of multiple disabilities as per the National Trust Act, 199913. The Court made it clear that so far as the case of a patient lying in comatose state was not covered by any of the statutes for appointment of guardian and the petitioners were justified in approaching the Court under Article 226 of the Constitution. The Court has laid down detailed guidelines as a temporary measure till the field is taken over by the proper legislation. Some of the guidelines are:
(i) Petitioner should disclose the particulars of property of the person in comatose state.
(ii) Examination of the person by Medical Board.
(iii) Factual report by Revenue Authorities after visiting the person at his residence.
(iv) Making all legal heirs of the person party to the petition.
(v) In absence of close relative, social welfare officer can be sought to be made guardian.
(vi) Appointment shall be in respect of specific property or bank account of the person.
(vii) Submission of half yearly report regarding utilisation funds by the guardian with Registrar General of High Court.
The Bombay High Court in Rajni Hariom Sharma v. Union of India14 also observed that that there is no statutory provision for appointment of guardian for person lying in comatose state. In this case, a bank had refused to allow the wife to put her signature in place of her husband who was in coma. The Court allowed the petition of the wife to be appointed guardian of the husband exercising its writ jurisdiction. The Court directed monitoring of the guardian through State Legal Aid Committee for period of two years.
The Delhi High Court in S.D. v. Govt. of NCT of Delhi15 appointed Guardianship Committee consisting of the wife, son, and brother as nominated representative under the Mental Healthcare Act, 2017 and also to manage all affairs of the patient including medical treatment, healthcare decisions qua daily living, financial affairs dealing with immovable and movable assets, decision qua shareholding of the patient, operate bank account. In this case, the relatives contested as to who should be appointed as the guardian. The Court observed that under Order 32-A, Rule 5 of the Code of Civil Procedure16, the civil court would have jurisdiction to appoint guardian in respect of persons with disability. The Court noted the absence of provision in the Mental Healthcare Act, 2017 in respect of management of financial affairs, appointment of guardian or the manner in which the movable/immovable property of the mentally ill person is to be taken care of.
Powers of civil court
The provisions of Order 32-A of the Civil Procedure Code17 have been used by civil courts in appointing guardian for the property of a person under a disability. The relevant provisions of Order 32-A are:
1. Application of the order
(1) The provisions of this order shall apply to suits or proceedings relating to matters concerning the family.
(2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this order shall apply to the following suits or proceedings concerning the family, namely:
* * *
(c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability;
* * *
5. Duty to inquire into facts
In every suit or proceeding to which this order applies, it shall be the duty of the court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant.
Partly relying upon Order 32-A, G.P. Patel, J. of the Bombay High Court has decreed a suit18 filed by two advocates to be recognised as the guardian of a fellow advocate in respect of all his personal and professional affairs. The advocate had no lineal descendants. Therefore, the suit was not covered strictly by provisions of Order 32-A CPC. The plaintiffs submitted that the advocate was in urgent need of a legal guardian to look after his obligations including claim for medical treatment and managing his professional obligations regarding monies lying in the client account. The Court observed that there is vacuum in law in the current laws of guardianship in para 20 as under:
20. The present case falls only partly within the provisions of Order 32-A(2)(c). But as this plaint points out, the state of the law in India simply does not make any sort of provision for a situation such as the present one. Mr Damania is neither mentally challenged, nor of unsound mind nor a minor. He has no family. He is incapacitated by an illness and the current laws of guardianship do not provide any recourse in a situation like this. This is, therefore, something of a vacuum in law. That, however, does not mean that Courts are helpless or that situations such as these should go unattended and unaddressed. I can draw support from the provision of Order 32-A CPC, Kathawalla, J.'s previous order of 6-3-2017 and also in a properly brought suit make reference to the omnibus provision for doing substantial justice that we find in Section 151 CPC19. This says that nothing in the CPC limits or otherwise affects the inherent power of the Court to make such orders as may be necessarily for the ends of justice or to prevent abuse of the process of the Court.20
The Court held that the suit lied outside the usual frame of a regular suit which demands the issue and service of writ of summons, written statement, etc. Considering the cause of action and credentials of the plaintiff, the Court decreed the suit at interim stage. The Court also relied upon earlier judgment of the Bombay High Court in Pragnesh Podar v. Alka Podar21 in which case the Court decreed the suit by declaring the plaintiff as the lawful guardian of Narayan Podar and manager of the assets, business properties, affairs and operate bank accounts.
Parens patriae jurisdiction
The High Courts while allowing the writ petitions have discussed the doctrine of parens patriae which implies that the king is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The Constitution Bench judgment of the Supreme Court in Charan Lal Sahu v. Union of India22 has explained parens patriae jurisdiction as the right and duty of the sovereign in public interest to protect person under disability. In Aruna Ramachandra Shanbaug v. Union of India23, the Supreme Court has observed that the Court is also a “State” within the meaning of Article 1224 of the Constitution, therefore in the case of an incompetent person who is unable to take decision whether to withdraw life support or not, it is the court alone as parens patriae which must take the ultimate decision though the view of the near relatives, next of kin and doctors must be given due weight. The High Courts have exercised parens patriae jurisdiction to appoint a guardian.
The vacuum in law regarding appointment of guardian for adult to deal with his property and assets needs to be filled up with comprehensive legislation. Living person by a testament in entitled to give directions regarding his estate and affairs after his demise. Similarly, a living person should be empowered to appoint guardian for his person and property when he is in good health with express powers to manage his financial affairs during his illness. The guardian may be subjected to filing regular accounts with courts similar to the National Trust Act, 1999. Also, provisions in terms of guidelines laid down by the Kerala High Court would be useful in preventing abuse by the guardian.
† Practicing Advocate, Bombay High Court.
3. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability Act, 1999, S. 10(f) (hereinafter National Trust Act, 1999).
18. Nitin G. Thakker v. State of Maharashtra, Suit 75 of 2020, judgment dated 13-8-2020. [Pending uploading]
20. Nitin G. Thakker v. State of Maharashtra, Suit 75 of 2020, judgment dated 13-8-2020. [Pending uploading]