Families arrive at this subject asking how to get a guardianship certificate, and the question cannot be answered until a different one is settled first: who is the person. There is no single guardianship law in India. There are four separate machineries, and which one you are in is decided entirely by the person rather than by what the family needs. A minor goes to the District Court under the Guardians and Wards Act, 1890. An adult with autism, cerebral palsy, mental retardation or multiple disabilities goes to a Local Level Committee under the National Trust Act, 1999, which is not a court at all. An adult who can take part in decisions with support falls under limited guardianship in the Rights of Persons with Disabilities Act, 2016. For treatment decisions in mental illness, the Mental Healthcare Act, 2017 gives a nominated representative and no guardian of property at all. And then there is the case nobody legislated for. An adult who cannot participate in decisions at all, after a stroke, in a coma, in advanced dementia, fits none of the four. In Shobha Gopalakrishnan v. State of Kerala the Kerala High Court examined each statute in turn, found that none of them reached such a person, and held that the remedy is a writ petition to the High Court in the exercise of its parens patriae jurisdiction. One more thing, for the families who do get the certificate. It is not a power of sale. Section 29 bars a court-appointed guardian of property from mortgaging, selling, gifting, exchanging or long-leasing the ward immovable property without the previous permission of the court, and section 31 allows that permission only for necessity or evident advantage. The certificate makes you the person who may ask.
What is on this page
The single most useful thing on this page is the thing people are never told at the counter: guardianship in India is not one subject with one procedure.
Four distinct bodies of law create four distinct kinds of guardian, administered by three different authorities. They do not overlap tidily and none of them is a general fallback for the others. A family that walks into the wrong one does not get redirected; it gets turned away, usually after months.
Worse, there is a fifth situation which none of the four reaches, and it is one of the commonest reasons a family needs a guardianship at all. That gap is dealt with later on this page, and it is the part of the subject that almost nothing written for the public mentions.
The first question is never which form to fill. It is who the person is, described in the terms the statutes use rather than in the terms a family naturally uses. Answer that correctly and the route follows. Answer it loosely and the route is wrong from the first day.
Five descriptions cover almost everybody who needs a guardian, and each one leads somewhere different.
A person under eighteen. The Guardians and Wards Act, 1890, before the District Court, read with whatever personal law applies.
An adult with autism, cerebral palsy, mental retardation or multiple disabilities. The National Trust Act, 1999, before a Local Level Committee, which is not a court.
An adult who can take part in decisions with support. Limited guardianship under the Rights of Persons with Disabilities Act, 2016.
An adult with a mental illness, for treatment. The Mental Healthcare Act, 2017, through an advance directive and a nominated representative, and no guardian of property at all.
An adult who cannot participate in any decision. No statute. A writ petition to the High Court.
Notice that two of those turn on a word of art rather than on an ordinary description. Minor is defined by statute. The four disabilities in the second entry are named in an Act title, and a condition outside that list does not become one by resembling it.
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The first route is the oldest and the best documented, and it has a boundary that is absolute.
The Guardians and Wards Act, 1890 is an Act about minors. Section 4 defines a minor by reference to the Indian Majority Act, 1875, and defines a ward as a minor for whose person or property, or both, there is a guardian. Every operative provision in the Act is built on those definitions.
The consequence is simple and it catches a great many families. A District Court petition under this Act is not available for an adult, however severe the adult condition and however obvious the need. The Act has no provision that stretches to cover one, and courts have said so in terms.
Nor does it stop being a minor case on the eighteenth birthday with the guardianship intact. The authority ends; what replaces it, if anything is needed, is one of the adult routes, and the family has to apply afresh in the correct one. Diarise the date at the time of appointment.
The second route is the one most families with a disabled adult child actually need, and it is the one least often described to them.
The National Trust Act of 1999 is named after the four conditions it covers, and that naming is the whole of its scope. Under section 14 an application for the appointment of a guardian may come from three sources only: a parent, somebody related to the person, or an organisation registered for this work. The guardian who emerges holds both halves of the office, the person and the property together.
Two features set it apart from everything else here. The authority is a Local Level Committee rather than a judge, which changes the procedure, the pace and the paperwork entirely. And the guardian carries a continuing duty to file an inventory and periodic accounts, which is a real obligation rather than a formality.
Read the four conditions in the title literally, because that is how they are read. If the person condition is not one of them, this route is closed, and no amount of describing it differently opens it.
The third route is the newest and the most misunderstood, because it was written to replace the idea of guardianship rather than to extend it.
Section 14 of the Rights of Persons with Disabilities Act, 2016 provides for limited guardianship: the District Court or a designated authority may appoint a guardian who takes legally binding decisions in consultation with the person concerned. The Act describes it as a system of joint decision which operates on mutual understanding and trust, confined to a specific period, a specific decision and a specific situation.
That is a different animal from the older model. The older model substituted somebody for the person. This one sits beside the person, and its whole architecture assumes somebody who can communicate a view, even imperfectly.
The people it was written for are a large group and an under-served one: an adult with an intellectual disability who holds a job and manages a routine but cannot deal with a property transaction alone; somebody with a psychosocial disability whose capacity varies with the period; a person recovering from a brain injury whose judgment is returning. For each of those, an order confined to one decision and one period is closer to the truth than a guardianship over a life.
And here the four routes run out, which is the finding this page exists to record.
A man who has had a severe stroke and cannot speak or indicate. A woman in a coma after an accident. A parent in advanced dementia who no longer recognises anybody. Each of those families needs somebody to deal with a bank account, a pension, an insurance claim or a property, and none of the four machineries reaches them.
The Guardians and Wards Act is for minors. The National Trust Act names four conditions and none of them is this. The Mental Healthcare Act gives a representative for treatment and nothing for property. And limited guardianship assumes a person who can take part. The gap is real, it has been judicially examined, and the answer is dealt with in its own group of sections below.
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Two words get used interchangeably by families and mean quite different things in a courtroom.
Custody is about where a child lives and who looks after him day to day, and it is usually fought between parents whose own relationship has broken down. Guardianship is a status conferred by a court or a committee that carries authority to act for somebody, including over property, and it survives independently of who the child is living with.
They can belong to different people. A parent may have custody while somebody else is guardian of a child property; a guardian of the person may not be the parent the child lives with at all. The statutes treat them as separate questions and so should any application.
If the real dispute is about where a child lives and who sees him, this is the wrong page. That subject, with the welfare principle as applied between parents, access, parenting plans and interim orders, is on our child custody guide, and a guardianship petition filed to win a custody fight is usually recognised as what it is.
The second confusion is with inheritance, and it runs in both directions.
A guardian owns nothing. He manages property that belongs to somebody else and is answerable for it, and his appointment says nothing whatever about who will inherit that property. A guardian who assumes that looking after an asset for ten years gives him a claim to it is in for an unpleasant discovery.
Equally, guardianship is not the document a family needs after a death. The instruments for that are a will, a legal heir certificate or a succession certificate, depending on the asset and the dispute, and each of those has its own page. Guardianship is for a living person who cannot act for himself.
There is a related confusion worth separating out. A family that has obtained a guardianship for a minor heir sometimes treats it as settling the estate question too, and it does not. The guardian manages the minor share in whatever the minor has inherited; who inherited what, and in what proportions, was decided by the succession law on the day of the death and is proved by its own documents. Mixing the two produces a file that satisfies neither a bank nor a sub-registrar.
Three wrong turns account for most of the wasted time we see, and all three are avoidable in a conversation.
The first is a District Court petition for a disabled adult, which is the single commonest error and the one that costs the most, because the file moves slowly before anybody says it cannot be entertained. The second is the reverse: a Local Level Committee application for a condition the Act does not name, which is refused faster but still costs a cycle. The third is an application to anybody at all for a person in a coma, where the answer is that no statutory authority exists.
None of those three errors is a legal subtlety. Each of them is settled by establishing one fact about the person before a single form is bought, and that is the fact families are never asked for.
With the route question settled, the first machinery in detail. The Guardians and Wards Act, 1890 begins with the power itself.
Guardians and Wards Act, 1890, section 7: where the court is satisfied that it is for the welfare of a minor that an order should be made appointing a guardian of his person or property, or both, or declaring a person to be such a guardian, the court may make an order accordingly. Such an order removes any guardian who has not been appointed by will or other instrument or appointed or declared by the court; and where a guardian has been so appointed, the court shall not appoint or declare another until the powers of the first have ceased.
Two things in that provision are worth separating. The court may appoint a guardian who was not one before, or declare that somebody already is one. The second is used where a person has been acting as guardian in fact and needs the status recognised, which is frequently what a bank is actually asking for.
And the last limb prevents a race. Where a guardian already exists by a will or a court order, a second application does not simply override him; the first appointment has to end first.
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The Act is generous about who may set the process in motion, and the list is wider than most families expect.
Section 8 permits an application by the person desirous of being, or claiming to be, the guardian of the minor; by any relative or friend of the minor; by the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or by the Collector having authority with respect to the class to which the minor belongs.
A relative or friend, not only a parent. That matters where a child has been left with an aunt or a grandparent and the person caring for him is not the person with the best claim on paper. It also means a concerned relative can bring the matter before a court where nobody else will.
The Collector entries are rarely used by families but they are not decorative. They exist so that a minor with property and nobody to protect it is not left without anybody able to apply.
Jurisdiction is split according to what the application is about, and getting it wrong wastes a filing.
Where the application concerns the person of the minor, section 9 places it before the District Court having jurisdiction in the place where the minor ordinarily resides. Not where he was born, not where the family property is, and not where the applicant lives.
Ordinarily resides is a question of fact rather than of record. It is where the child actually lives in the settled course of things, which is usually obvious and occasionally contested, for example where a child has been moved recently or moves between households.
Where the residence is genuinely arguable, deal with it in the petition rather than leaving it to be raised. School records, the address on identity documents and the period of residence do the work, and a petition that addresses the point is harder to derail than one that assumes it.
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For property the Act offers a choice, and attaches a safeguard to it.
Section 9 provides that an application in respect of the property of a minor may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides, or to a District Court having jurisdiction in a place where he has property; and that where an application is made to a court other than that of ordinary residence, that court may return the application if in its opinion the matter could be disposed of more justly or conveniently by another court.
So a minor living in one city with inherited land in another can be dealt with in either place. That is a real convenience where the property is the whole point of the application and the witnesses and records are there.
The safeguard is the power to return. A court that sees an application filed in a place with a thin connection to the matter may send it back, so the choice should be made for a reason that can be stated rather than for a reason of convenience to the lawyer.
Section 10 prescribes the contents, and the list is long enough that omissions are the commonest cause of an objection.
Section 10 requires a petition signed and verified in the manner prescribed for a plaint, stating so far as can be ascertained: the name, sex, religion, date of birth and ordinary residence of the minor; where the minor is a female, whether she is married and if so the name and age of her husband; the nature, situation and approximate value of the property, if any; the name and residence of the person in custody of the minor or the property; what near relations the minor has and where they reside; whether a guardian has been appointed by will or other instrument or by the court; whether any previous application has been made and with what result; whether guardianship of the person or of the property or of both is applied for; and the qualifications of the proposed guardian.
Read the property entry carefully. Nature, situation and approximate value, of all of it. A schedule that lists the asset the family wants to deal with and omits the rest is not a complete disclosure, and an item discovered afterwards reads as concealment whatever the reason for it was.
One document in the section is small, easy to overlook and fatal to omit.
Section 10 requires the petition to be accompanied by a declaration of willingness to act by the person proposed as guardian, signed by him and attested by at least two witnesses. Not a statement in the petition that he is willing. A separate declaration, signed and attested.
It exists because of the rule in section 17 that nobody is made a guardian against his will, and together the two make the point that guardianship is an office somebody accepts rather than a burden a family allocates.
It is drawn as a short attested declaration rather than as a full affidavit in most registries, though local practice varies and some courts want it sworn. Check what the particular District Court expects before the proposed guardian makes his one trip, because a second attestation is a second appointment with two witnesses.
Where the proposed guardian is elderly or lives elsewhere, attend to this first rather than last. It is the document most often still being chased when everything else is ready, and the attestation requirement means it cannot be produced by email in five minutes.
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Once the court is satisfied there is ground to proceed, the Act is careful about who hears about it.
Section 11 requires the court to fix a day for the hearing and to cause notice to be served on the parents of the minor if they are residing in a State to which the Act extends; on the person having the custody of the minor or of the property; on the person proposed as guardian, unless he is himself the applicant; and on any other person the court thinks should receive notice. Notice is also posted at the court house and at the residence of the minor, and published as the court directs. No charge is made for serving or publishing notice.
That last sentence is in the Act and is worth knowing, because service and publication costs are a line item families are sometimes asked about.
The breadth of the notice provision also explains why these matters are not quick. Everybody with a stake is brought in by design, and an application that tries to keep somebody out of the picture is working against the structure of the section rather than around it.
Treat the notice list as part of the strategy rather than as a formality at the end. Who will be served, what each of them is likely to say, and whether any of them will oppose are questions to answer before filing, because the answers decide whether this is a four-month matter or a two-year one.
One section limits the court power before any question of welfare is reached, and it surprises applicants more than any other.
Section 19 provides that the court is not authorised to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards; or of the person of a married female whose husband is not, in the opinion of the court, unfit; or of the person of a minor whose father is living and is not, in the opinion of the court, unfit to be guardian of the person of the minor.
The third limb is the operative one in practice. Where the father is alive, the question before the court is not whether somebody else would do the job better. It is whether the father is unfit, and that has to be made out on material rather than asserted in a paragraph.
Applications by grandparents and by maternal relatives founder here regularly. The family has a strong sense that the child is better off with them, and the Act has placed a prior question in the way of that argument.
A related question arises constantly: if a parent is already the natural guardian, why is a court order needed at all?
For most purposes it is not. A natural guardian can admit a child to school, consent to ordinary treatment, open and operate a minor account and deal with the child day to day without anybody appointing him to anything.
Two situations change that. The first is where an institution insists on an order, which banks and insurers do in particular circumstances. The second, and the important one, is immovable property, where the natural guardian is under the same restriction as a court-appointed guardian. That restriction has its own group of sections further down and it is the point on which most families are caught.
Before applying, ask the institution in writing exactly what it requires and under what rule. A surprising proportion of guardianship petitions are filed because a form had a box on it, and the box turned out to describe something narrower than a court order.
The governing standard appears twice in this subject, and it is stronger than a factor to be weighed.
Section 17(1) requires the court, in appointing or declaring a guardian, to be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Section 13 of the Hindu Minority and Guardianship Act, 1956 makes the welfare of the minor the paramount consideration in the appointment of a guardian of a Hindu minor.
Note the qualifying words in the first of those: consistently with the law to which the minor is subject. Welfare operates within the personal law rather than instead of it, which is why the religion of the minor appears in the list of matters the court considers.
Welfare in this context is not confined to money or to comfort. It takes in education, health, stability, the child relationships, and the capacity of the proposed guardian to provide all of that over the years the guardianship will run.
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Section 17 then lists what the court is to have regard to, and the list is usable as a drafting checklist.
The age, sex and religion of the minor. Objective facts, and the reason the petition has to state each of them.
The character of the proposed guardian. Which is where conduct, reputation and any adverse history become relevant.
His capacity. Health, age, means and circumstances, judged against a guardianship that may run for years.
His nearness of kin to the minor. Not decisive, but a real consideration, and the reason a stranger application needs more.
Any existing or previous relations of the proposed guardian with the minor or with his property. Somebody already involved starts ahead of somebody who is not.
A petition that addresses all five, briefly and with material behind each, is a petition that has done the court work for it. Most petitions address one and assume the rest.
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One item in the same section is easy to miss and occasionally decides the matter.
Section 17 directs the court to have regard to the wishes, if any, of a deceased parent. Where a parent has died and left an indication of who should look after the child, that indication is a matter the court considers, alongside everything else.
The practical point is evidentiary. A wish expressed only in family conversation is hard to put before a court. A wish recorded in a will, in a letter, or in a signed statement is a document, and documents are what these applications run on.
That turns the point into advice for parents rather than for applicants. A parent with a young child and a serious illness, or simply with assets and foresight, can write down who should be guardian. It is not binding and it is not nothing, and it costs an afternoon.
The child own view has a place, and the Act frames it carefully rather than as a veto.
Section 17 provides that if the minor is old enough to form an intelligent preference, the court may consider that preference. Two qualifications sit in that sentence. The minor must be old enough to form an intelligent preference, which is a question about this child rather than about an age; and the court may consider it, which keeps it a factor rather than a decision.
In practice the court usually hears the child itself rather than relying on what anybody reports the child said, and a petition that asserts the child preference without the child being available to express it carries very little.
How that preference is taken also matters. Courts are alive to the possibility that a child living with one side of a family will say what that side wants said, and the weight given to a stated preference tends to rise with the child age and with the circumstances in which it was expressed. A preference recorded in a letter drafted by an adult carries less than one given to a judge in chambers.
The last limb of section 17 is short and it is absolute.
The court shall not appoint or declare any person to be a guardian against his will. Read with the declaration of willingness that section 10 requires, the position is that guardianship cannot be imposed on a relative by the rest of the family, by a court, or by circumstance.
That is a protection and it is also a planning problem. Families frequently assume that a sibling or an uncle will take the role, and discover at the signing stage that he is unwilling, which sends the entire application back to the start.
Settle the identity of the proposed guardian before anything is drafted, and settle it with the person rather than about him. The conversation is uncomfortable and it is far less uncomfortable than discovering the answer two months in.
Once appointed, the Act states the duties in a sentence for each kind of guardian.
Section 24: a guardian of the person of a ward is charged with the custody of the ward, and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
Support, health and education. Three words, and they are the measure against which a guardian conduct is judged if anybody later questions it. The closing words matter as well: whatever the ward personal law additionally requires is part of the duty, which is why religion appears in the matters the court considers at appointment.
This is a duty rather than a discretion. A guardian who holds the office and leaves the ward support and education to somebody else is not discharging it, and that is one of the grounds on which a guardian can later be removed.
One restriction on a guardian of the person is procedural and is breached constantly in good faith.
The rule has four moving parts. It binds a guardian of the person whom a court appointed or declared, and not a Collector or somebody named in a will. It bites when the ward is taken outside the territory of that court, which for a family in a border district can be a short drive. It is lifted only by leave, which the court may give for one journey or as a standing permission. And rules may carve out purposes for which no leave is needed at all. The sub-section itself is printed on our travel consent page, where it does most of its work.
A move to another city for work, a long stay with relatives, a holiday abroad: each of those can require leave, and a guardian who has never read the section does not know to ask.
The sensible course is to ask for a general leave at the time of appointment, framed around the circumstances that are foreseeable, rather than returning to court on each occasion. Courts grant it on conditions where the request is reasoned.
The Act also gives the guardian a remedy where the ward is taken away, and the remedy is framed around the ward rather than around the guardian.
Section 25: where a ward leaves or is removed from the custody of a guardian of his person, the court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and delivered into the custody of the guardian.
Read the condition in the middle. The order is made because the return is for the welfare of the ward, not because the guardian is entitled to him. An application framed as an assertion of the guardian right misses what the section asks.
The enforcement power is real and is occasionally necessary, and it is also the reason these applications are approached carefully where an older child has left of his own accord.
For property the Act sets a standard rather than a list of permitted acts, and the standard is an old and well understood one.
Section 27: a guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it if it were his own, and he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
As if it were his own, and with ordinary prudence. Not with the boldness of somebody investing his own money for growth, and not with the timidity of somebody afraid to act at all. The standard contemplates a guardian who collects rent, renews a deposit, pays a tax, repairs a roof and sues a defaulter, because each of those is realisation, protection or benefit.
What it does not contemplate is speculation, lending to the guardian own business, or allowing an asset to deteriorate because acting felt risky. Both inaction and adventure are failures of the same standard.
Against that general freedom the Act places one hard restriction, and it is the single most consequential provision on this page.
Section 29: a guardian of a ward property who holds the office because a court appointed or declared him, and who is neither a Collector nor somebody named in a will or other instrument, may not, unless the court has already permitted it, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of his ward immovable property; or lease any part of that property for a term exceeding five years, or for any term extending more than one year beyond the date on which the ward will cease to be a minor.
Every word of that is doing work. Mortgage or charge, so raising money against the property is caught as much as selling it. Or otherwise, so a transfer dressed as something else is caught too. Five years, and the one-year tail beyond majority, so even a long tenancy requires leave.
This is the sentence that disappoints families who have just obtained a guardianship certificate. The certificate is authority to manage and to ask. It is not authority to dispose, and a sale executed without the permission is a defect in the title that outlives everybody involved in it.
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Permission exists, and the test for it is narrower than most applicants assume.
Section 31: permission to the guardian to do any of the acts mentioned in section 29 shall not be granted except in case of necessity or for an evident advantage to the ward.
Two gates and the applicant has to walk through one of them. Necessity is the ward own necessity: his maintenance, his education, his medical treatment, the discharge of a debt charged on the property, the payment of a liability that will otherwise cost him the asset. Evident advantage is a benefit to the ward that can be shown rather than argued, typically a sale at a good price with the proceeds secured or reinvested for him.
Notice what is outside both. A need of the family rather than of the ward. A share in a property the rest of the family wants to sell. A business opportunity for the guardian. Each of those is a real pressure and none of them answers the statutory test.
Applications fail here more often than anywhere else, and they fail honestly. The family need is genuine and the section is simply not addressed to it. Where that is the position, it is better to know before a sale is agreed than after a buyer has paid an advance.
The request itself is a separate application in the guardianship proceeding rather than a letter to the judge, and it is supported by the valuation, the purpose and whatever shows that the proceeds will reach the ward. Where a family wants to reorganise holdings among themselves and a minor share is involved, a family settlement drawn without this permission in hand is a settlement with a hole in it.
Section 31 also prescribes the shape of the order, and the prescription protects everybody including the buyer.
The order must recite the necessity or advantage, must describe the property with sufficient certainty to identify it, and must specify the conditions, if any, on which permission is given. It is recorded, dated and signed by the judge, which makes it a document a purchaser can examine.
The conditions the court may attach are set out in the section and they tell you how these transactions are supervised in practice: that no sale shall be completed without the sanction of the court; that the sale be by public auction to the highest bidder; that no lease be made in consideration of a premium or shall be on terms the court directs; and that the proceeds be paid into court.
For anybody buying property in which a minor has a share, this is the checklist. Ask for the order, read whether it recites necessity or advantage, check that it describes this property, and check whether each condition in it was complied with. A title verification that skips any of those has not examined the title.
A parent who has never been to court assumes none of this applies to him. It does, and under a different Act.
Section 8 of the Hindu Minority and Guardianship Act, 1956 does to a parent what section 29 does to a court appointee, and it does it in almost the same words. Grouped by what each limb stops: raising money on the child land is stopped, whether by mortgage or by charge; parting with it is stopped, whether the instrument is called a sale, a gift, an exchange or anything else; and tying it up long is stopped, on the same five-year line and the same one-year tail past the birthday. Each of those needs the court permission first. The provision is set out word for word on our conveyance deed page, because that is where a buyer meets it.
The restriction tracks section 29 almost exactly, and it attaches to a parent acting as natural guardian without anybody having appointed him. There is no exception for a parent who is certain the transaction is in the child interest, and no exception for a small share.
Transactions of this kind happen constantly. A family sells an ancestral property in which a child has a notional share; a father mortgages a house that is partly in his son name; a plot inherited by three people including a minor is sold as one parcel. Each requires the permission, and in a great many of them nobody asked for it.
The consequence of ignoring that restriction is the reason it matters years later.
Section 8 provides that a disposal of immovable property by a natural guardian in contravention of it is voidable at the instance of the minor or any person claiming under him. Not void, so the transaction is not a nullity from the start; voidable, so it stands until the person entitled sets it aside.
Read who holds that right. The minor, and anybody claiming under him. It is not the seller right and it is not cured by the rest of the family having been content. It is a live defect in the title that a purchaser inherits, and a purchaser who knew nothing about it is in no better position for not having asked.
For a buyer rather than an applicant, this is the paragraph on the page that matters. Where a minor has or had a share, the court permission is not paperwork to be chased later. It is the thing that makes the sale safe, and it has to exist before the deed.
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Every route in this subject carries an accounting duty, and guardians underestimate it uniformly.
A guardian of property under the 1890 Act is answerable for his dealings and can be required to produce accounts; a guardian appointed under the National Trust Act must file an inventory of the property and periodic accounts of what is received and spent; a guardian appointed by a High Court in the gap cases is required to report every six months. None of those is a formality and each of them is eventually read by somebody.
The failure is almost never dishonesty. It is a guardian who acted properly for four years and kept nothing, and is then asked to account for a period he can no longer reconstruct.
Start the record on the first day and keep it dull. A dated sheet with every receipt and every payment, the bank statements filed in order, and a note against anything unusual. It takes ten minutes a month and it is the difference between a routine report and a problem.
One situation deserves a note of its own. Where a bank wants protection before releasing a sum held for a ward, or where an institution asks for cover before parting with something, an indemnity bond is frequently what is actually being sought. It is a document rather than a court order, it costs very little, and families sometimes spend weeks pursuing a guardianship when the counter would have taken one.
A guardianship is not permanent, and it can end in two quite different ways.
Section 39 lists the grounds on which the court may remove a guardian, on its own motion or on the application of any person interested: abuse of trust; continued failure to perform the duties of the trust; incapacity to perform them; ill treatment or neglect of the ward; contumacious disregard of the Act or of an order of the court; conviction of an offence implying a defect of character which unfits him; an interest adverse to the faithful performance of his duties; ceasing to reside within the jurisdiction; and, for a guardian of property, bankruptcy or insolvency.
Section 41 deals with the ordinary ending: the powers of a guardian cease on his death, removal or discharge, on a Court of Wards assuming superintendence, and in the case of property, on the ward ceasing to be a minor. On cessation the court may require the guardian or his representative to deliver the property and the accounts, and may then discharge him from liability, save as to fraud afterwards discovered.
The discharge is worth asking for rather than letting the matter lapse. A guardian who hands everything over and obtains a discharge has closed the chapter; one who simply stops acting has an open liability that nobody has ever formally ended.
Turning to the adult routes, the second machinery is defined by a list, and the list is in the title of the Act itself.
The 1999 Act takes its name from four conditions and reaches those four alone: autism, cerebral palsy, mental retardation, and multiple disabilities. Somebody living with one of them is inside the statute. Somebody living with anything else is outside it, no matter how severely they are affected.
Multiple disabilities is the entry that causes the most difficulty, because it sounds like a catch-all and is not. It requires two or more of the qualifying disabilities at the degree the law specifies, which is a conjunction of listed conditions rather than a general description of somebody who is severely affected in several ways.
That reading is not a cautious interpretation; it is the one a High Court has applied in terms. Families with a relative who is profoundly disabled by something outside the list are routinely told at the Committee that the Act does not reach them, and the reason is this definition.
The authority under that Act is unlike anything else in this subject, and the difference changes how an application is prepared.
A Local Level Committee is constituted under the Act at the district level. It is not a court, there is no cause list in the ordinary sense, there is no opposing party as such, and the proceeding is administrative rather than adversarial. Appointment is by the Committee itself under section 14, on an application brought by one of the three classes the section allows.
For a family that has been told to prepare for litigation, that is good news and it is also a trap. Good news because it is faster and less formal. A trap because the informality leads people to prepare less carefully, and a Committee working from an incomplete application simply waits.
Prepare it as though it were a court application even though it is not. The disability material in order, the property scheduled with documents, the relationship proved, and the accounting format already thought about. The Committee is doing a serious thing and a serious file moves.
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The class of applicants under section 14 is narrower than under the 1890 Act and differently composed.
Three classes, and only three: a parent; somebody related to the person with disability; or an organisation registered for this work. The inclusion of a registered organisation is deliberate and it matters: where a person with disability has no family able or willing to act, an organisation working in the field can bring the application, which is a route that does not exist for minors.
The guardian appointed is responsible for the person and for the property both, rather than the two being split as they can be under the 1890 Act. That is a simplification and it is also a reason to think about whether one person can realistically do both over a long period.
One consequence of the narrower class is worth planning for. A friend or a neighbour, however close and however willing, is not within it, and neither is an unregistered group. Where the family is genuinely unable to act, the route is a registered organisation working in the field rather than an informal arrangement, and identifying one takes time that is better spent before the need becomes urgent.
The continuing duties under this route are specific, and they begin immediately rather than at the first anniversary.
The guardian must file an inventory of the property of the person with disability, and thereafter periodic accounts of the money received and spent. The Act deals with the duties and with removal in the sections following the appointment power, and the structure makes the guardianship a supervised office rather than a one-time grant.
The inventory is the item most often done badly, because families prepare it in a hurry at the point of appointment and then live with it for years. Everything should be in it, each entry with a document, and anything whose value is uncertain should be described rather than guessed at.
Where the person has small recurring income, a pension, interest, a disability allowance, build the account format around those from the start. An inventory of assets with no way of recording a monthly inflow becomes unusable within a year.
The Act provides for removal as well as appointment, and the grounds are of a familiar kind.
A guardian who is not acting in the interest of the person with disability, who abuses the position, who fails in the duties the Act imposes, or who ceases to be able to perform them can be removed, and another appointed in his place. The power sits with the same authority that appointed him.
The practical significance is for families worried about what happens after the parent who is currently managing everything is gone. An appointment is not irreversible and a successor is not impossible, but neither is automatic, and a family that wants continuity should think about it while there is still somebody able to apply calmly.
For the same reason it is worth naming, in the application itself, who the family would want as a successor and why. Nothing binds the authority to that, and an application that has thought about continuity reads very differently from one that has not. Parents making this application in their sixties are usually thinking about exactly that question and rarely put it on paper.
The third route was written in a different decade and with a different idea of what guardianship should be.
Rights of Persons with Disabilities Act, 2016, section 14 provides for limited guardianship, under which the District Court or a designated authority may appoint a guardian to take legally binding decisions in consultation with the person with disability; described as a system of joint decision which operates on mutual understanding and trust, and limited to a specific period, a specific decision and a specific situation, taken in accordance with the will of the person.
Every limiting word in that is intentional. Not a general authority over a life, but an authority over a decision. Not for so long as the disability lasts, but for a period. Not instead of the person, but with him.
The change of philosophy behind it is that disability is not an absence of will and that the law should support a person in exercising his own, rather than appointing somebody to exercise it for him.
The practical difference between joint decision and substitution is worth spelling out, because applications are often drafted as though the older model still applied.
Under a substituted model the guardian decides and the person is informed. Under this one the decision is reached with the person, in consultation, and in accordance with his will. A guardian who overrides the person is not exercising a limited guardianship; he is doing something the section does not authorise.
There is a drafting consequence here that most applications miss. An application should record what the person can do, how he communicates, and on which matters his own indication is to be followed. That is not a weakening of the application. It is what the section is asking for, and it reads as somebody who has understood the Act.
The architecture that makes the provision humane also makes it unusable in one situation.
Consultation, mutual understanding, trust and accordance with the will of the person all assume a person who has a will and can convey it. Where somebody cannot interact at all, there is nothing for the consultation to operate on, and a limited guardianship would be a fiction wearing the language of participation.
Courts have said exactly that. Section 14 presupposes a person able to interact with others, and a patient who cannot is outside it. The provision is not being read narrowly out of caution; it simply does not describe that person.
It is also the reason a family should not reach for this route merely because it sounds gentler. Where the person genuinely cannot participate, an application framed as a limited guardianship invites the answer that the section does not apply, and the months spent on it are months lost. The kinder-sounding route is the wrong one if the person it describes is not the person in front of you.
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The fourth machinery is often mentioned in the same breath as guardianship and is not guardianship at all.
The Mental Healthcare Act, 2017 provides for an advance directive, by which a person states how he wishes, or does not wish, to be cared for and treated for a mental illness, and for a nominated representative who can give directions about treatment in the person best interests.
That is a treatment instrument. The Act does not provide a guardian of property, and the omission is deliberate: the statute is built around supported decision-making about care rather than around somebody taking over a person assets.
A family holding a nominated representative document and expecting a bank to act on it is holding the wrong instrument. It is the right document for a hospital and it answers nothing at a branch counter.
Which brings the page to the situation it was written for, and to the finding that almost nothing published for families records.
An adult who cannot participate in decisions at all, after a severe stroke, in a coma, in advanced dementia, is covered by none of the four machineries. There is no authority to apply to, no form, and no officer whose job it is. The need is urgent and entirely ordinary: a pension to be drawn, a deposit to be renewed, an insurance claim to be made, a property to be protected.
Shobha Gopalakrishnan v. State of Kerala, High Court of Kerala, decided 20 February 2019 (P.R. Ramachandra Menon and N. Anil Kumar JJ.). The Court examined each statute in turn, held that none of them provided a remedy for a person in a comatose or vegetative state, and held that the petitioners were justified in invoking Article 226 and the court parens patriae jurisdiction. It laid down interim guidelines pending legislation.
Parens patriae is the ancient idea that the State stands as parent to those who cannot protect themselves. It is not a statutory power and it is not quick, and in this situation it is what there is.
The first of the four exclusions turns on the definition examined earlier.
The Court held that a comatose person does not fall within the National Trust Act, because multiple disabilities requires two or more of the qualifying disabilities at the degree specified, which such a patient does not have. A single condition, however catastrophic, does not satisfy a definition built on a conjunction of listed conditions.
The Court also addressed an earlier observation by a single judge that a Local Level Committee could appoint a guardian in such a case, and held that it was confined to its own facts and was not a precedent. That is useful to know, because the observation still circulates.
The practical consequence for a family is immediate and unwelcome. The Local Level Committee is the nearest, cheapest and least formal authority in this whole subject, and for a comatose relative it is simply not available. Families are often sent there by somebody well meaning, and the refusal, when it comes, has cost a cycle that the patient condition did not allow.
The second exclusion is narrower and turns on a definition most families would never think to check.
The Court held that a comatose patient does not answer the definition of mental illness in section 2(s) of the Mental Healthcare Act, 2017. Unconsciousness is not a mental illness in the statutory sense, and a statute addressed to the care and treatment of mental illness does not reach a person who does not have one.
Even if it had, the Act provides a representative for treatment decisions and no guardian of property, so it would not have answered the problem the families in that case actually had, which was a bank that would not act.
The confusion is understandable because the Act is recent and is widely described as the law for people who cannot make decisions about their own care. It is that, for mental illness. It is not a general statute about incapacity, and reading it as one leads a family to prepare an advance directive and a nomination that no bank will look at.
The third exclusion is the one that most surprises people, because the 2016 Act is the most recent and sounds the most comprehensive.
Guardianship under section 14 of that Act presupposes a person who can interact with others. The decisions are taken in consultation with him and in accordance with his will. A patient in a coma cannot be consulted and has no conveyable will, so the section has nothing to operate on.
That is the price of the shift from substituted to supported decision-making, and it is a real one. The newer model is better for the great majority of people with disabilities and it leaves a small group outside it entirely, which is the group this part of the page is about.
There is a further practical point hidden in this. Because section 14 contemplates an order confined to a specific decision, a specific period and a specific situation, even where it does apply it will not produce the open-ended authority a family dealing with a long illness is usually looking for. The route and the need have to match in scope as well as in principle.
Having found no statute, the Court did not leave the families without a remedy. It laid down a procedure.
Fourteen interim guidelines were framed, to hold the position until the legislature acts. They are not a statute and they are not binding across the country in the way an Act would be, and they are the clearest available statement of what a court will want to see in such a petition.
The remaining sections in this group set out the ones that change what a family has to collect. Taken together they describe a file, and a petition that arrives with that file already assembled is a petition that can be decided.
Their standing is worth stating plainly rather than overselling. Guidelines framed by one High Court bind the courts subordinate to it, and elsewhere they are persuasive, which in practice means that a petition built around them is a petition a judge recognises. Where your own High Court has taken a different approach, that approach governs, and establishing which is the first thing an advocate on such a file should do.
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Two independent verifications sit at the centre of the guidelines, and neither can be supplied by the family.
The patient must be examined by a duly constituted Medical Board, including a neurologist. A certificate from the treating doctor is not what is contemplated; the Board is constituted for the purpose and the inclusion of a neurologist is specified.
Separately, a revenue official not below the rank of Tahsildar must visit the residence and report on the facts, on the relatives and on the financial position. That is an independent check on what the petition says about the family and the assets, and it is the step that most often sets the timetable.
Both of those are arranged rather than produced, which is why these petitions take time that no amount of urgency compresses. Starting them early, before the petition is finalised, is the only thing that shortens the process.
The guidelines are specific about both questions, and the second is where petitions are most often defective.
The guardian should ideally be a close relative, a spouse or a child, and where no family member is suitable a public official such as a Social Welfare Officer may be appointed. The applicant must be legally competent to act.
And all legal heirs must be impleaded. Not the agreeable ones, not the ones who live nearby, all of them. An order obtained without a sibling on the array is an order that sibling can question, and a bank or a sub-registrar that notices the omission will act on it.
This is the point at which a family quarrel becomes a procedural problem. Where one heir is estranged or uncontactable, that has to be dealt with openly in the petition rather than by leaving him out and hoping, because leaving him out is the one thing that will be noticed.
The scope of the order under this route is deliberately confined, and it is the feature families find most restrictive.
The appointment is limited to specified properties and bank accounts, and the guardian must act in the patient best interest. There is no general authority over everything the person owns. The order names what it covers.
Which means the petition has to name them too, correctly and completely, and a property omitted from the petition is a property the order does not reach. Going back for a second order is possible and it is a second proceeding.
The schedule of assets in one of these petitions is not background material; it is the operative part of the relief. Build it first, with a document against each entry, and have somebody who is not the drafter check it against the family own knowledge.
The last feature of the guidelines is supervision, and it continues for as long as the guardianship does.
The guardian must file six-monthly reports with the Registrar General, covering the transactions and the use of the funds, and the Registrar General maintains a separate register of such appointments and reports. The guardian must also notify the local Social Welfare Officer, who may make random visits and report to the court. The duties and accounts follow the pattern of the National Trust Act provisions, and the court may revoke the appointment for misuse, misappropriation or neglect and appoint somebody else.
Appointment may be temporary, for a fixed period, or permanent, and the guardian must obtain the court permission before moving the patient out of the jurisdiction. Any relative or next friend may apply for the guardian removal.
The temporary and fixed-period options are worth asking for where the prognosis is uncertain. A family whose relative may recover partially is better served by an order that can be revisited than by one framed as permanent, and courts have been readier to make the first than the second.
Read as a whole, the guidelines are a small statute written by a court because none existed. A family that understands that is in a better position than one expecting a form, because what is being asked for is a file and an undertaking to go on accounting for years, not an application.
Five things go wrong on these files with enough regularity to be worth listing, and four of them happen before any court is approached.
Applying under the wrong statute. A family with a comatose relative files before a Local Level Committee; a family with a child with cerebral palsy files a petition in the District Court. Both are turned away and both have lost months.
Treating the certificate as a power of sale. It is not. A court-appointed guardian of property still needs separate permission before immovable property is touched at all.
Not impleading all the heirs. An order obtained without them is an order a bank or a sub-registrar can question later, and they do.
Silence about property in the petition. Everything the person owns has to be disclosed; a later discovery reads as concealment whatever the reason for it was.
No plan for the accounts. Every route here carries a reporting duty, and a guardian who has not kept records from day one is in difficulty at the first report.
Only the second of those is about the law. The rest are about the route being chosen before anybody had established who the person is, which is the first page of this guide for a reason.
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Our work on a guardianship matter is a route note, a petition and a schedule, and the route note comes first because it decides the other two.
The route note sets out who the person is in the terms the statutes use, which machinery that puts you in, which authority is approached and what that authority can and cannot grant. Then the petition or application, drawn in the form the chosen route requires. Then the schedule of property, item by item, with the document for each. Then the medical material, the relationship proof and the heir list, with the formal petition drafting done to whatever form the chosen forum uses rather than to a general template. And an account-keeping format the guardian can actually maintain, handed over at the start rather than requested at the first report.
The route note is the part clients did not know they needed and the part they come back for. Most of the cost of a guardianship matter is spent in the wrong forum, and an hour spent establishing the right one saves months of it.
Four things sit outside, each for its own reason rather than as a way of narrowing the job.
Court fees and process fees, paid at cost wherever they fall. The medical examination and the board report, which belong to doctors and to whatever hospital conducts them. Any disability certificate that has to exist before a route is available, which is its own separate exercise. And the appearance and argument, which belong to an advocate.
Our stated time of 1 – 3 months and our fee of ₹9,500 cover the route note, the drafting, the schedule, the annexures and the follow-up. They do not cover how long a District Court list or a Local Level Committee takes, because that is nobody on this side of the table to promise.
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This is a court or committee proceeding from the first day, and the division is clear enough to state in four lines.
Any appearance, any argument, any contested hearing where another relative opposes the appointment, and any application for permission to deal with immovable property belong to the advocate who will appear. Where the route is a writ petition because no statute fits, that is High Court work throughout and is not something a documentation service conducts.
Court work is for your advocate, whose fee is engaged and paid by you directly; we do not quote, collect or share it.
What we hand that advocate is a file in which the route is already reasoned, the property is already scheduled and the heirs are already identified, which is the difference between a first conference about strategy and a first conference about missing papers.
Four facts let us settle the one thing that has to be settled before anything else, and all four fit in a paragraph.
Who the person is and their age. What their condition is, described plainly rather than diagnosed. Whether a disability certificate exists and what it records. And what the guardianship is actually needed for, which is usually a bank account, a property, an insurance payment or an admission.
That last fact changes the answer more than people expect. A guardianship sought to operate one bank account and a guardianship sought to sell a house are different applications with different evidence, and sometimes the first does not need a guardianship at all.
If the papers are scattered or the family is in more than one city, an online consultation is the quickest way to get the route settled, with the documents confirmed afterwards.
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The output is a set of papers that a bank, a sub-registrar or a hospital will accept without a second conversation.
| Who the person is | Which law applies | Who appoints | What the guardian may then do |
|---|---|---|---|
| A minor, person or property | Guardians and Wards Act, 1890, with the personal law | The District Court | Custody, support, education; property only as a prudent owner, and never immovable property without separate permission |
| A minor, Hindu, natural guardian acting | Hindu Minority and Guardianship Act, 1956 | Nobody appoints; the status exists | Ordinary acts; immovable property only with the court permission, and a transaction without it is voidable |
| An adult with autism, cerebral palsy, mental retardation or multiple disabilities | National Trust Act, 1999 | The Local Level Committee | Care of the person and management of property, with an inventory and periodic accounts |
| An adult who can take part in decisions with support | Rights of Persons with Disabilities Act, 2016 | The District Court or designated authority | Joint decisions taken in consultation, limited in time and subject |
| An adult who cannot participate at all | No statute | The High Court, parens patriae | Only the named properties and accounts in the order, with six-monthly reports |
Alongside the order itself: the schedule of property with a document against each item, the medical material, the heir list, the account format, and certified true copies of anything that could not be obtained twice. Every paper is checked against the original before it goes in, and anything in another language goes through legal translation in full. For a guardianship that will report for years, legal file management is what keeps the set current.
Expectations on this subject run ahead of the law more than on almost any other page we write, so the limits are worth stating together.
It will not let you sell the ward immovable property. It will not make you an owner of anything, now or later, and it does not affect who inherits. It will not survive the minor attaining majority or the ward recovering. It will not reach property that the order did not name, where the route was a writ petition. And it will not relieve you of the duty to account, which continues for as long as the guardianship does.
What it does is make you answerable for somebody else affairs with authority to act in them. That is a serious and useful thing, and it is a smaller thing than most families expect when they begin.
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Describe the person and what the guardianship is for, and we will come back with the route and what it needs.
Send four things: who the person is and their age, what their condition is in plain words, whether a disability certificate exists and what it records, and what the guardianship is actually needed for. We will come back with which of the five routes applies, which authority is approached, what that authority can and cannot grant, and a list of what has to be collected. If it turns out that no guardianship is needed for the thing you are trying to do, we will say so first.
No single statute governs this subject, which is the reason the page is organised by person rather than by procedure; five bodies of law are drawn on below and they do not overlap tidily. For a minor, the Guardians and Wards Act, 1890. Section 4 defines a minor by reference to the Indian Majority Act, 1875, and a ward as a minor for whose person or property, or both, there is a guardian. Section 7 empowers the court, where it is satisfied that it is for the welfare of a minor, to appoint or declare a guardian of the person or property or both, and provides that such an order removes any guardian not appointed by will or other instrument or by the court, and that where a guardian has been so appointed the court shall not appoint or declare another until the powers of the first have ceased. Section 8 lists who may apply: the person desirous of being or claiming to be guardian, a relative or friend of the minor, the Collector of the district or local area in which the minor ordinarily resides or has property, and the Collector having authority over the class to which the minor belongs. Section 9 fixes jurisdiction: an application about the person goes to the District Court having jurisdiction where the minor ordinarily resides; an application about property may go there or to a District Court having jurisdiction where the minor has property, and a court other than that of ordinary residence may return the application if the matter would be disposed of more justly or conveniently by another court. Section 10 requires a petition signed and verified in the manner prescribed for a plaint, stating so far as can be ascertained the minor name, sex, religion, date of birth and ordinary residence, whether a female minor is married and the name and age of her husband, the nature, situation and approximate value of the property, the person in custody, the near relations, any previous guardianship appointment and any previous application, whether guardianship of the person or of the property or both is sought, and the qualifications of the proposed guardian, accompanied by a declaration of willingness to act signed and attested by at least two witnesses. Section 11 provides for fixing a day for the hearing and for notice to the parents, to the person having custody, to the proposed guardian and to others the court thinks fit, with posting at the court house and at the residence and publication as directed, and provides that no charge is made for service or publication.
On what the court weighs and what a guardian may then do, section 17 requires the court, in appointing or declaring a guardian, to be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor; to have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property; to consider the minor preference if the minor is old enough to form an intelligent preference; and not to appoint or declare any person to be a guardian against his will. Section 19 prevents the court from appointing a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, of the person of a married female whose husband is not in the court opinion unfit, or of the person of a minor whose father is living and is not in the court opinion unfit. Section 24 makes a guardian of the person responsible for the ward custody and for his support, health and education and such other matters as the law to which the ward is subject requires. Section 25 permits the court, where a ward leaves or is removed from the custody of a guardian of his person, to order his return if it is for the ward welfare, and to enforce that order by causing the ward to be arrested and delivered to the guardian. Section 26 ties a court-appointed guardian of the person to the territory of the appointing court, so that taking the ward outside it needs leave, which may be given for a single occasion or as a standing permission and may carry conditions; the sub-section is printed in full on our travel consent page. Section 27 requires a guardian of property to deal with it as carefully as a man of ordinary prudence would deal with it if it were his own, and permits all acts reasonable and proper for the realisation, protection or benefit of the property.
On the limits placed on a guardian of property, ★ section 29 bars a guardian of a ward property who holds office by a court appointment or declaration, and who is neither a Collector nor a person named in a will or other instrument, from mortgaging or charging the ward immovable property, or transferring it by sale, gift, exchange or otherwise, unless the court has permitted it beforehand, or lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor. Section 31 provides that permission under section 29 shall not be granted except in case of necessity or for an evident advantage to the ward, and requires the order to recite the necessity or advantage, to describe the property and to specify the conditions, with discretionary conditions including that no sale be completed without the court sanction, that sale be by public auction to the highest bidder, that no lease be made in consideration of a premium, and that the proceeds be paid into court. Section 39 lists the grounds on which the court may remove a guardian, including abuse of trust, continued failure to perform duties, incapacity, ill treatment or neglect of the ward, contumacious disregard of the Act or of an order of the court, conviction of an offence implying a defect of character unfitting him, an interest adverse to the faithful performance of his duties, ceasing to reside within the court jurisdiction and, for a guardian of property, bankruptcy or insolvency. Section 41 sets out how the powers of a guardian cease and permits the court, on cessation, to require delivery of property and accounts and then to discharge the guardian from liability save as to fraud afterwards discovered. For a Hindu minor, the Hindu Minority and Guardianship Act, 1956 operates alongside: section 8 puts a natural guardian under the same leash as a court appointee over the child immovable property, so that raising money on it, parting with it or tying it up beyond the stated periods each needs the court leave first, and a disposal made without that leave may be set aside at the instance of the child or of anyone claiming through him; the sub-section is printed in full on our conveyance deed page; and section 13 makes the welfare of the minor the paramount consideration. ⚠ Note that the 1890 Act still refers in terms to the Code of Civil Procedure, 1882 and the Code of Criminal Procedure, 1882, both long replaced, references the passage of time has left behind, carried across by the ordinary savings machinery rather than by any amendment to this Act.
On an adult, where the law is in three pieces and one gap, the National Trust Act, 1999, whose long title names autism, cerebral palsy, mental retardation and multiple disabilities, confines an application under section 14 to a parent, to somebody related to the person, or to a registered organisation, and places it before a Local Level Committee; the guardian is responsible for the person and for the property, and sections 15 and 16 deal with the duties, including an inventory and periodic accounts, and with removal. The Rights of Persons with Disabilities Act, 2016, section 14, provides instead for limited guardianship, under which the District Court or a designated authority may appoint a guardian to take legally binding decisions in consultation with the person concerned, described as a system of joint decision which operates on mutual understanding and trust, limited to a specific period and a specific decision and situation and taken in accordance with the will of the person. The Mental Healthcare Act, 2017 provides for an advance directive and a nominated representative for decisions about treatment, and does not provide a guardian of property at all. ★★ The gap, and what the courts have done with it: in Shobha Gopalakrishnan v. State of Kerala, High Court of Kerala, decided 20 February 2019 (P.R. Ramachandra Menon and N. Anil Kumar JJ.), the Court held that a person in a comatose or vegetative state does not fall within the National Trust Act, because multiple disabilities requires two or more of the qualifying disabilities at the specified degree; that such a person does not answer the definition of mental illness in section 2(s) of the Mental Healthcare Act, 2017; that limited guardianship under section 14 of the 2016 Act presupposes a person able to interact, which such a patient cannot; and that the Guardians and Wards Act, 1890 is confined to minors. Finding no statutory remedy, the Court held that the petitioners were justified in invoking Article 226 and the court parens patriae jurisdiction, and laid down interim guidelines pending legislation, including full disclosure of the patient movable and immovable property, examination by a duly constituted Medical Board including a neurologist, a report by a revenue official not below the rank of Tahsildar, preference for a close relative with all legal heirs impleaded, appointment limited to specified properties and bank accounts, six-monthly reports to the Registrar General, a separate register of such appointments, duties and accounts on the pattern of sections 15 and 16 of the National Trust Act, intimation to the local Social Welfare Officer who may make random visits, and leave of the court before the patient is moved out of the jurisdiction. Procedures, forms and fees differ between States and between District Courts and Local Level Committees, and the position of a person who cannot participate in decisions is governed by case law rather than by statute, so confirm the current position for your State and your facts before anything is filed.
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