Saturday, 13 February, 2010

Laws Relating to Guardianship in India

Guardianship is a legal process that transfers decision-making authority over an individual (a ward) deemed incapable of managing his or her personal or financial affairs to another person (the guardian). Guardians may be appointed for both minors and adults.
Modern guardianship has its roots in English common law, a legal system which England then transported to its colonies. Under English common law, the doctrine of parens patriae (parent of the country) allowed the courts to assume control of and appoint guardians for infants (minors) and incompetents (incapacitated adults). While the details and terminology vary, guardianship is found not only in the United Kingdom, but also in the United States, Canada, and Australia. In addition, guardianship has been adopted in other countries, such as Japan, whose legal systems are not generally based on the law of England.
In the United States today, state law controls the appointment of guardians, and guardians are appointed by state courts. Because each state is free to enact its own laws, state guardianship laws vary, even on basic terminology. Under the Uniform Guardianship and Protective Proceedings Act, a model act in effect in about one-third of the states, a guardian makes personal-care decisions, while a conservator manages property. But in many other states, the court-appointed manager is referred to as either a guardian of the person or a guardian of the property.
Laws in India:

The   Hindu  Minority and Guardianship Act, 1956:
The law relating to minors and guardianship amoung Hinds (in India) is The Hindu Minority and Guardianship Act, 1956 . A “Minor” is one who has not completed 18 years of age . A guardian  is one who has the care of the person  or the property of a minor or of both his person and property. There are four categories of guardians viz., the natural guardian, testamentary guardian appointed by and under a will of the minor' s father or mother, a guardian appointed or  declared  by a court, and a person empowered to act as guardian by or under any enactment relating to court  of wards.
If the  minor is a boy or an unmarried girl, the father and in his absence the mother is the natural guardian. In the case of illegitimate children, however, the natural guardian is the mother and after her, the father.
The natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother.
The natural guardian of a Hindu minor has power, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
The natural guardian shall not, without the previous permission of the court ( District Court) alienate the property of a minor in any manner. Any disposal of immovable property by a natural guardian, with out court order  is voidable at the instance of the minor or any person claiming under him.

Law of Guardianship for Christians in India:
In matters relating to guardianship of minors  Christians in India are governed by the Guardians and Wards Act (Central Act No 8 of 1890) The law relating to guardianship is of great significance while dealing with and entering into any transaction concerning the property of a minor. The principal District Court  with in whose jurisdiction the minor ordinarily resides is the only Authority competent to pass orders in matters pertaining to the person and property of a minor. While minors are competent to own property, law insists that the property  owned by minors can be alienated ( sold, mortgaged etc) only with the permission of the concerned Principal District Court.

Guardian ship of mentally ill persons:
Guardianship of the person and property of mentally ill person in India is governed by the provisions of  Mental Health Act 1987.Before appointing a guardian for the mentally ill person the District Court with in whose jurisdiction the alleged mentally ill person resides has to arrive at a finding that such mentally ill person is incapable of taking care of himself and managing his property. Once such a finding is recorded   District  Court has to appoint a guardian to take care of the person of the mentally ill person and  also a manager  for the management of his property.
The manager shall not mortgage, create any charge on, or , transfer by sale, gift, exchange or otherwise, any immoveable property of the mentally ill person or lease out any such property for a period exceeding five years, unless he obtains the permission of the District Court in that behalf. 
The District Court may, on an application made by the manager, grant him permission to mortgage,. create a charge on, or, transfer by sale, gift, exchange or otherwise, any immoveable property of the mentally ill person or to lease out any such property for a period exceeding five years, subject to such conditions or restrictions as that Court may think fit to impose.
The District Court shall cause notice of every application for permission to be served on any relative or friend of the mentally ill person and after considering objections, if any, received from the relative or friend and after making such inquiries as it may deem necessary, grant or refuse permission having regard to the interests of the mentally ill person.

Guardianship of  Persons with  Autism, Cerebral Palsy,
Mental Retardation and Multiple Disabilities: 
‘The National Trust for Welfare of Persons with  Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999” was enacted by Indian Parliament to look after the welfare of  persons suffering from  Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities.

Local  Level Committee formed in each District  is the Authority for appointment of a guardian of  a person with disability. A registered organization can also make such an application with consent of the natural guardian of the disabled person. The Local Level Committee will examine whether the person with disability needs a guardian and for what purpose and also lay down the duties of the guardian. The guardian will be responsible for the maintenance of the person with disability. The guardian will also submit to the Local Level Committee inventory and annual accounts of the property and assets, claims and liabilities in respect of such person with disability. A guardian so appointed can be removed for negligence or for misappropriating the property of the person with disability.

1 comment:

  1. A good insight into Laws of Guardianship in India. If you could update the post with recent case laws on Guardianship?

    Ms Sindhu Yadav,
    Subject Matter Expert,
    Choir de Law Pvt. Ltd., Delhi


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