GUARDIAN – A person appointed to look after another person or his property and assumes the care & protection of the person for whom he/she is appointed.
ROLE OF GUARDIAN – The guardian may take legal decisions, medical-related decisions, investment & property-related decisions, etc on behalf of the person of whom he has been appointed as guardian, depending on the level of responsibility given to him. Separate guardians can be appointed for the care of the person and for the care of the property of the person with a disability.
IN CASE OF MINOR – Since a minor is considered unfit to take decisions for himself, hence, he is treated in law as incompetent to enter into a contract. Therefore, in all matters, a guardian takes decisions on behalf of the minor for protecting the interests of the minor and his property. It is open to a parent to appoint a guardian for his minor child (who may also be a person with a disability) under a ‘Will’ or other testamentary instruments
IN CASE OF A PERSON WITH DISABILITY – A person who is unable to take care of himself or his property due to his physical and mental deficiencies also needs a guardian.
PERSONS WITH AUTISM, CEREBRAL PALSY, MENTAL RETARDATION & MULTIPLE DISABILITIES – 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.
DIFFERENT TYPES OF GUARDIANS
- Natural Guardian – As per India’s Hindu Minority and Guardianship Act, 1956, natural guardian of a Hindu minor boy or unmarried girl is the father, and only after him, the mother. It also provides that the guardian of a married minor girl is her husband.
- Testamentary Guardian – Guardian appointed by way of a Will to ensure that the child will have a guardian after the death of natural guardian. However, a testamentary guardian cannot act as a guardian till the natural guardian is alive.
- Guardian appointed/declared by the court
Depending on the DIFFERENT LEVELS OF RESPONSIBILITIES guardianship can be
- Full Guardianship – Complete decision-making authority & responsibility for another person e.g. a child under 18 years of age
- Limited Guardianship – Where responsibility is given for specific needs e.g. taking care of property
- Joint Guardianship – Where responsibility is held by another person
GOVERNING BODY (Section 14 of the National Trust Act) The Local Level Committee headed by the District Collector is empowered to receive an application and appoint guardians for persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities.
FOLLOWING PERSONS CANNOT BECOME LEGAL GUARDIAN –
- A friend of a person with disability unless recommended by a parent or a sibling or a relative
- A person living abroad
- A person who is not a citizen of India
IN CASE GUARDIAN IS UNABLE TO FULFILL HIS DUTIES In such a case, the guardian will be liable to be removed and another guardian will have to be appointed.
SECURITY – A guardian may have to give some security, by way of guarantees/ undertaking or bonds, to the Local Level Committee etc to ensure that he will fulfill his obligations.
CRIMINAL ACT BY GUARDIAN – The Local Level Committee can complain to the area magistrate to take action against the legal guardian. Alternatively, the Committee can request the aggrieved person to institute such complaint and report to the Committee.