The legal regime governing the welfare of persons with special needs in India has evolved significantly in the past two decades. In the absence of a robust legal regime, parents of children with special needs have faced economic, emotional, and practical hardships in supporting and raising their children. To address this lacuna, the Mental Health Act, 1987 was enacted. However, the 1987 Act was unable to comprehensively provide the much-needed legal recourse to persons in need. The stigma of mental illness was still prevailing at such a point of time and to a great degree there was still no redressal provided to persons with other kinds of disabilities. These concerns were then addressed by the Indian legislature over the course of time, to bring about a modern and egalitarian approach to address the needs of the society. Steps have been taken by the Government of India to enable individuals with special needs to lead an independent and fruitful life, duly protected by a legal framework aimed to provide comprehensive support through public institutions.
This article discusses the legislations governing the process of appointing guardians for persons with special needs.
The Indian legal regime seeks to protect the rights of persons with both specific and general disabilities. The Supreme Court of India states that a guardian is, “a person invested with the power, and charged with the duty, of taking care of the person, managing the property and rights of another person, who, for defect of age, understanding, or self-control, is considered incapable of administering his/her own affairs”.1 While the attributes of a guardian form an important part of a guardianship application, the Supreme Court of India has held that paramount consideration must be given to the welfare of the child – taking into account not only the child’s ordinary contentment, health, education, intellectual development and favourable surroundings, but also physical comforts, and moral and ethical values.2 The existence of an appropriate mechanism becomes even more necessary in cases of guardianship of individuals with special needs, so that parents, siblings or relatives can continue making decisions on behalf of the individual, even after he/she attains the age of majority. In this context, the words of Mother Teresa, “never travel faster than your guardian angel can fly”, become especially relevant.
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.3
Guardians and Wards Act, 1890
A guardianship application for a person under the age of eighteen years may be filed under the GWA.4 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.5
Since matters of succession and guardianship are governed by personal laws, related legislations may be applicable. For instance, in the case of Hindu minors, the Hindu Minority and Guardianship Act, 1956 (HMGA) is relevant as it brings personal law into the fold of the aspect of guardianship.
The HMGA also treats the welfare of the minor as the paramount factor in deciding guardianship applications.6 However, it does classify two further types of guardians mainly, (1) natural guardians (parents); and (2) testamentary guardians (persons appointed to be guardians by the parents in the event of their demise). This supplemental procedure of appointing testamentary guardians under the HMGA is further accepted by a committee constituted under the NTA, when appointing a guardian for a person with special needs under the age of eighteen years.7 Further, the process of application of guardianship under the GWA8/HMGA9 is wide in scope, as it allows foreign nationals to apply for guardianship of a minor with special needs, unlike in the NTA, wherein foreign nationals are barred from applying.
There is, however, no personal law of guardianship applicable to minors of other faiths, such as Christians, Parsis and atheists. The GWA is the guiding law when considering applications of guardianship for individuals with special needs of such other faiths. Thus, any person desirous of being a guardian (for instance, a relative or a friend), can apply to the court requesting to be appointed as the guardian of the individual with special needs.10
In relation to the duties of the guardian, the “guardian of the person” must look after health, education, and maintenance of the minor. On the other hand, “guardian of the property” must deal with the property of the minor, as a person of ordinary prudence would do so with his own property. Such guardian requires the prior permission of the court to mortgage or transfer by sale or gift the immovable property belonging to his/her ward. The guardian acts in a fiduciary capacity and not that of an agency in relation to his/her ward.11 The guardian may be removed through the declaration of the court, by resignation or through automatic cessation, which would include events such as death of guardian or the person with special needs ceasing to be a minor.
National Trust Act, 1999
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.12 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.13 However, the qualifying conditions to appoint a guardian, which are discussed below, are stricter than the GWA. Further, the rights accorded hereunder are not of guardianship, but rather of limited guardianship (discussed in detail in the RPWD section).
For an individual with special needs as specified above, a guardianship application can only be filed by such a person’s parents or siblings. Failing this, the role may be taken on by relatives, and in the absence of relatives, by a registered institution.14 This application for guardianship shall be only for a limited guardian, due to the provisions of the RPWD. The guardianship applications are considered by a committee constituted under the NTA, based on whether the person with disability requires a guardian and the scope of the guardianship itself. A similar process is available for removal of the guardian.
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.15
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.16 However, if there is still a requirement of the individual with the disability needing support, an application can be made to the District Court, or an authority notified by the State Government for appointment/removal of a guardian. The criterion that the authority shall consider in deciding a guardianship application is whether the person with the disability is able to take legally binding decisions on his own accord. Earlier, for persons battling mental sickness, this process of appointment of guardian was present in the Mental Health Act, 1987 (now repealed).17
The RPWD provides for a limited guardianship which can be understood as a form of guardianship that would operate on a spirit of mutuality between the person with disability and the guardian and it shall be limited to either a specified period, or a particular decision or situation. Thus, the limited guardianship would operate as per the will of the person with disability, differing from the form of a traditional guardianship. Therefore, an application to be appointed as a guardian of an individual with special needs under the NTA shall also be only for a limited guardian.18 This provision under the RPWD would not affect the scope of the guardianship of the guardians appointed under the GWA, as there is no overlap between the RPWD and the GWA. The latter primarily deals with guardianship of minors and not specifically with persons with special needs.
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.19 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.
Mentally ill persons are empowered to appoint and revoke their appointment of nominated representatives at any point of time. The qualifications to be a nominated representative are: (1) age of majority; (2) person is competent to perform and discharge his duties; and (3) consent in writing has been given by the person being appointed.20
The difference between a nominated representative and a guardian is that the former is appointed by the person themself, while the latter is appointed by the court or a designated authority; and more importantly, the former aids in making treatment decisions, while the latter makes legally binding decisions on the behalf of the person.
Key considerations when applying for guardianship
A person desirous of applying to be appointed as a guardian of a person with special needs, must consider the following:
- The most important criterion, as reiterated above, is the individual’s age. The legislations governing the process of appointment of a guardian of an individual with special needs, are demarcated into two groups: (1) for minors; and (2) for majors.
- In respect to an individual with special needs being a minor, the personal law of the individual shall be the primary consideration after the factor of age. The application for appointment of guardian of minors of the Hindu faith would be made under the HMGA. On the other hand, application for appointment of guardian of minors of other faiths, would be made under the GWA.
- The process for applying to be appointed as a guardian of a minor with special needs has basic qualifying criteria, as any competent person desirous of being a guardian can make an application. Even foreign nationals shall be allowed to make an application for guardianship of a minor with special needs.
- In respect to an individual with special needs who has attained the age of majority, the deciding factor for making an application of guardianship under a particular legislation would be the nature of the disability. The NTA is a legislation for specific complex disabilities (listed above). While the RPWD governs all persons with disabilities, therefore an application for appointment of guardian of an individual with any disability would be permissible.
- A foreign national applying to be a guardian of an individual with special needs, would have to apply under the RPWD only and would be automatically barred by the provisions of the NTA.
In respect to individuals with special needs, in particular those suffering from mental illness, the scope of guardianship differs. An application for appointment of a limited guardian may be filed under the RPWD or an application for appointment of a nominated representative may be filed under the MHA.
To conclude, the legislations have attempted to bring about a certain degree of self-sufficiency in respect to individuals with special needs. The powers of a traditional guardian are available only under the GWA. This mechanism does not affect the goal of self-sufficiency, as the application of the GWA is only to minors (persons under the age of eighteen years). The support of the parents/guardian is deemed sufficient and necessary during such nascent years. The NTA and RPWD only allow for appointment of limited guardians for persons with disabilities. Thus, allowing the persons with special needs to avail the support they need in that particular aspect of their life for a finite time or a particular decision/situation. If the parent/family member would like to continue to support their child/ward, they would have to renew their limited guardianship by making an application to the court/designated authority. Lastly, the MHA allows for an appointment of nominated representative and not guardians. The lack thereby of a process for appointing a guardian is reflective of bringing about a social change by the legislature. Therefore, the factor of age and the nature of the disability would play a crucial role in deciding the type of guardianship that can be sought.
† Partner, Khaitan & Co.
†† Associate, Khaitan & Co.
13. Board of the Trust Regulations, 2001, Regn. 11(1).
14. Board of the Trust Regulations, 2001, Regn. 11.
15. Board of the Trust Regulations, 2001, Regns. 12(6) and (7).
17. Yogalakshmi v. District Collector, Chennai, LNIND 2019 Mad 5196.