LEGAL GUARDIANSHIP AND CUSTODY OF ADULTS WITH MENTAL DISABILITIES

A guardian as a person who is appointed to look after another person. They have to assume the care and protection of the person for whom they are appointed as a guardian. The guardian takes all legal decisions on behalf of the person concerned.

Who Can Be a Guardian

  • A person whose name is suggested as a guardian can be appointed only if:
  • He /she is a citizen of India
  • Is not of unsound mind or currently undergoing treatment for a mental illness
  • Does not have a history of criminal conviction
  • Is not a destitute and dependent on others for his own living; and
  • He / she has not been declared insolvent or bankrupt

Procedure for Removal Of A Guardian

A guardian of a disabled person can be removed if any parent, relative or a registered organization applies to the local level committee, in a prescribed format, stating that the guardian is:

  • Abusing or neglecting a person with disability and / or
  • Misappropriating or neglecting the property.

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.

Section 13 of the Rights of Persons with Disabilities Act 2016 (RPD Act) recognizes that persons with disabilities have legal capacity with respect to financial matters, inheritance etc. It provides that the Government must undertake suitable measures to enable persons with disabilities to enter into financial contracts and own property in their name without any discrimination. The statute also mandates that persons with disabilities should have legal capacity on par with others. Section 14 provides for limited guardianship of persons with disabilities where they require additional support or assistance. The limited guardian is expected to act based on mutual trust and decisions with the consent of the persons with disabilities who appoint them.

There are lots of ways to support a person living with a mental illness. For example, a person who cannot make decisions about money may want a representative payee. A power of attorney is another way to help someone manage their money.

Supported Decision Making is another option. In Supported Decision Making, a person chooses people to be on their “team.” The team can include family, caregivers, or other important people. The team helps the person make decisions without a court. An advance healthcare directive or advance psychiatric directive are also options instead of guardianship.

The best way to decide about guardianship is to talk to the individual, family members, care givers, and other people who are close to the person.

If your child does need a guardian, the guardianship should be designed to help them build and keep as much independence and self-determination as they are able to have. The guardianship will cover only some areas of your child’s life clearly defined by the court. It could cover money, medical decisions, housing, voting, and if your child needs permission to get married.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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