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GUARDIANSHIP (DOC)

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					                                         GUARDIANSHIP

WHO IS A GUARDIAN?
       A guardian is a person who has assumed the care and protection of another person, and
is responsible for all legal decisions on behalf of that person, and his property.

         All parents are legal guardians of their child(ren) till the child attains 18 years of age. After
that parents are no longer the legal guardians.          This means that they cannot take any legal
decision(s) on behalf of their child, or legally represent their child. The child is seen as having the
ability to take those decisions by itself.

THE SPECIAL SITUATION OF PERSONS WITH. AUTISM, CEREBRAL PALSY,
MENTAL RETARDATION AND MULTIPLE DISABILITIES.

        Persons with Autism, Cerebral Palsy, Mental Re tardation and Multiple Disabilities
are in a special situation because even after they reach 18 years of age, they are not seen as being
adequate to manage or take any legal decisions for their betterment. In case of Cerebral Palsy and
Multiple Disabilities there may be need for only limited guardianship because of the availability
of enabling mechanisms and /or scientific facilitation enabling persons to live with the certain
disabilities. The National Trust Act, therefore, enables a person with above disabilities to have
a guardian representing her/him throughout their lives.

       As per the Act, a parent can get legal guardianship of their son or daughter with disability
and represent them even after they are 18 years of age.

       Parents are the Natural Guardians of their children till their child turns -18. So they do not
need to apply for guardianship until then. After that the parents can apply for guardianship under the
National Trust Act.

NATURE OF GUARDIANSHIP There are
two kinds of guardianship: i)      Guardian for
the person
ii)     Guardian for the person and property

       It is important to note that mental retardation is not infrequently associated with Cerebral
Palsy, Autism and other multiple disabilities. Such disabilities who also have mental retardation
will need legal guardians to represent them both for their person as well as their property.

       However, other persons with these disabilities without any mental retardation may
perhaps require only a guardian for their person.
WHY SHOULD A PARENT GET LEGAL GUARDIANSHIP OF THEIR CHILD?

        Most parents do take full responsibility of the disabled child(ren), continue with their care
and protection even after the child has attained 18 years of age. Many persons with Cerebral Palsy,
Mental Retardation, Autism and Multiple disabilities do require active care taking throughout
their lives. In our country, parents and the family have traditionally been the major care-taking
units.

Reasons for taking legal guardianship?

        Although, parents may take the full responsibility of looking after their child, even after
the child is 18 years old, they will need to legally represent their child as a guardian in many
situations such as:

1. Guardianship may be needed for obtaining loans and concessions.

       Parents may wish to apply for any concession or a scheme meant for persons with disability.
In such cases they may require to show that they are the legal guardians of their child.

        As an example, the National Handicapped Finance Development Cooperation has introduced
an income generation scheme for the benefit of persons with mental retardation, cerebral
palsy, autism and multiple disabilities. If this scheme is accessed by the parents, they would be
required to prove their guardianship status.

2. Guardianship may be needed for managing investments.

A)    Parents who are unaware of the new laws may not wish (wrongly) to make investments
or manage them for the benefit of their child(ren) with disability.

        For example, during one workshop, it was shared by the parents of a child with mental
disability that they had bought property in their child‟s name. By doing this they had hoped that this
investment would be used to look after their son when they could no longer do so. When their son
turned 18, the property that was in his name, could not be legally managed by him. Under the
earlier laws, the parents were no longer the legal guardians of their son and therefore could not
manage the property on his behalf. This meant that they could not undertake actions such as
                      .
renting the property Under the NTA, parents can now remain guardians of their child even after
he or she is over 18 years of age.They can therefore, manage the property on such child‟s
behalf.The property can be invested and it can remain in the name of the person with disability. This
can be seen as a step in ensuring that an investment is actually used for the benefit of the person with
mental disability.
B)     For opening and operating bank accounts in the name of the disabled child will need to
prove the guardianship after 18 years of age.

       For example, Saurav is a 16 year old child with autism. His mother has opened a bank
account in his name. However, when Saurav turns 18 his mother in general would not have the
legal authority to operate his account. In order to do so, she would need to get the legal
guardianship.

3. To safeguard the interest of disabled when involved in a crime.

       If for any reason, the person with disability gets involved in any criminal activity, or for some
reason goes to jail, he would need a legal guardian to act on his behalf.

4.     To ensure support an guardianship even after the death of parent(s).

        The majority of the parents worry about “what will happen to my child after me?” Knowing
that other persons can also be guardians of their child can alleviate this worry. Under the National
Trust Act there are provisions for monitoring of guardians. Parents should be aware that they have
an option to open a trust(s) for their child.

WHO ELSE CAN ASK FOR APPOINTMENT OF A GUARDIAN AND BE
APPOINTED AS A GUARDIAN

       Under the National Trust Act, apart from parents, a disabled person’s relatives
and registered organizations can also take the initiative to have a guardian appointed for a
person with disability.

        Parents are the first national choice for guardianship of their child. It is important to note that
either one of the parents can be a guardian, but it is preferable to have a joint guardianship.

        In certain situations when the parents are unable to look after their child, such as poor healt
h, they can nominate a person of their choice to assume the guardianship.

Relatives seeking guardianship

        In case the parents are not available, or die unexpectedly so that there is no guardian
left, a relative can either seek guardianship for oneself or ask the local level committee to appoint
another guardian for the child. A relative could include- a sibling, grand parents, maternal and
paternal uncles and aunts.

Organizations seeking guardianship

       In case there is a child with disability who is fo und abandoned, a registered
organization could move an application stating that a guardian should be appointed for the person.
       A registered organization can also become the guardian.       The local level committee
can also ask a registered organization to take a guardianship of a destitute or abandoned person
with disability.

Such registered organization could be:
   - A non-government organization working in the area of disability
   - A registered parents association
   - An organization of persons with disability.

PROCEDURE FOR GETTING GUARDIANSHIP

       A parent or relative requires to move an application (Form-A) under Rule 16 (i) to the Local
Level Committee asking for appointment of a Guardian.

The Form-A has details regarding the:
   (x) Person with Disability (Name, age, nature of disability, address)
   (y) The proposed Guardian (Name, age, relationship with the ward, address)
   (z) Nature of Guardianship required i.e., whether it is for:
          - The person or
          - The person and property. The Other
requirements are:
    - A disability certificate.
    - 2 witnesses, who have to sign.
    - Consent of the person proposed to be appointed as the guardian and the consent of
       the natural guardian (i.e. the parents, if available).

WHO CAN BE A GUARDIAN

       A person whose name is suggested as a guardian can be appointed only if: (a) He /she
          is a citizen of India
          (b) Is not of unsound mind or currently undergoing treatment for a mental
                     illness.
          (c) Does not have a history of criminal conviction.
          (d) Is not a destitute and dependent on others for his own living; and
          (e) 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:
           (a) Abusing or neglecting a person with disability and / or
           (b) Misappropriating or neglecting the property.

       Abuse or neglect by the Guardian would entail the following:
           (a) Solitary confinement of the person with disability in a room for long period of
               time.
           (b) Chaining.
           (c) Physical abuse resulting in bruises, skin or tissue damage (not due to self
               injurious behaviour indulged by the person with disabilities.) (d) Sexual
           abuse
           (e) Long deprivation of the physical needs such as food, water and clothing.
           (f) No provision / or no n-compliance of the rehabilitation or training
               programme(s) as specified by experts in the field of rehabilitation.
           (g) Misappropriating or misutilisation of the property of disable person.
           (h) Lack of facilities or no provision of trained or adequate staff for meeting the training
               and management needs of the person with disabilities.

WHO HAS THE AUTHORITY TO CONFER GUARDIANSHIP TO PARENTS OR
OTHERS UNDER THE NTA?

             A Local Level Committee formed at a district and / or state level and consisting of
3 members (district magistrate or the commissioner of a district, a representative of a registered
organization and a person with disability as defined by the PWD Act), looks into the matters
concerning guardianship.                          It is     responsible      for    conferring   the
guardianship as well as monitoring the guardians.

HOW CAN LOCAL LEVEL COMMITTEES BE SET UP?

        Parent associations, registered organizations etc. can approach the District magistrate
or the district commissioner for setting up a local level committee in their rea. Thereafter the
proposal to legally constitute a committee has to be sent to the National Trust by either of the
district magistrate or district commissioner or by the state government.
Forms „A to D‟are meant for obtaining guardianship and subsequent care of the property
& / or other assets.

FOR MORE DETAILS CONTACT :
National Trust,
(Ministry of Social Justice and Empowerment,
 Government of India)
IPH Complex, 4 Vishnu Digamber Marg,
New Delhi- 110002.
                                            Form A
                                         (See Rule 16 (1))
Form of application to the Local level Committee by a patient, relative or a registered organization
for appointment of guardian for a person with disability.


From:                                              Date: To
The Local Level Committee
Sir/Madam,

        …………. Is a person with disability and requires protection of his person and property
through a guardian. We here by request that …………………..be appointed as guardian of the said
………………………for the protection of his person property.

     We furnish hereunder further details and request early decision:
1. Particulars of the person to be provided
     guardian
     Name: Age :
     Nature of Disability:
     Address:
2. Particulars of the person proposed to be
     appointed as guardian
     Name: Age:
     Relationship with ward, if any: Address
     We enclose herewith disability certificate of the said ……………. Obtained from
………………….

Witnesses                                                                    Yours faithfully,
 st
1 Witness                                                         Authorised Signatory
                                                                             Name:
 nd
2 Witness                                                         Designation: Office
                                                                  Stamp.
Consent of the person proposed to be appointed Guardian
     I hereby agree to be the guardian of the person and property of ………………. And
shall discharge my obligations with due diligence.

                                                    Signature:
                                                      Name:
                                                      Date:
Consent of the guardian, If any, to the aforesaid proposal.
   I hereby agree to the above proposal to appoint ……………as the guardian of…..
                                                   Signature:
                                                   Name:
                                                   Date:
                                             Form –B
                                         (See Rule 16 (2))

    Form of confirmation of appointment of guardian on application made by (1) a registered
organization, or (2) parent or relative of person with disability,.

    The Local Level Committee situated at ………………. Having considered the application
             made by ………………..for appointment of ………………….for
appointment of guardian for …………………hereby confirms its decision as under:

1.   Name of the ward:

2.   Name of Guardian:

3.   Obligations of the guardian:
     (a) Maintenance and Residential care
     (b) Management of immovable property
     (c) Management of movable property
     (d) Any others:


          The guardian shall furnish property to this Committee as per Form C and Form D
specified under these rules.


Place:
Date:                    Signature(s):


                          Stamp:
                                               Form C


      Form of return covering property of the ward to be submitted by the guardian within 6
                            months of his appointment as guardian.

1. Name of the guardian:
2. Name of the Ward:
3. Date of appointment of the guardian:
4. Inventory of immovable property of
   the ward received by the guardian (to be furnished item-wise) (i) Nature:
     (ii)Estimated Market Value: (iii)
     Location:
5. Inventory of the movable property of
     the ward received by the guardian ( to be furnished item-wise) (i)
     Description:
     (ii) Value:
6. Pending Liabilities of the ward:
     (i) Nature: (ii) Amount:
7. Pending Claims receivable by the Ward:
     (i) Nature: (ii) Amount:

I declare that aforesaid information is true and accurate to the best of my knowledge, information
and belief.


Place:                           Signature of the guardin
Date:

Witnesses
 st
1 Witness
 nd
2 Witness
                                              Form-D


           Form of account of the property and assets to be furnished by the guardian
               Within a period of 3 months of the close of every financial year.

1. Name of the guardian:
2. Name of the Ward:
3. Immovable property of the ward
     held by the guardian as on …………………………. (to be
     furnished item- wise)
(i) Nature:
(ii)Estimated market Value: (iii)
Location:
4. Receipts and payments statement
     for the period from ……………..to………………..
     ……………….payments ………………….. ……… Receipts…………….
     Heads                       amount          Heads amount.
5. Moveable assets of the ward in the charge
     of the guardian on…………………….. (to be
     furnished item wise)
     (i) Nature:
     (ii) Amount:
6. Investments redeemed or alienated
     for consideration during the year ended
     ……………………………..
7. New investments made during the
     year ended ……………………..(including renewals)
8. Increase/decrease in the value of
     movable assets of the ward during the years
     ended……………………….:
9. Brief explanation for the variation
     vide (8) above:

I hereby declare that aforesaid information is true and accurate to the best of my knowledge
information and belief.

Place:                                              Signature of the guardian
Date:

Witnesses
 st
1 Witness
 nd
2 Witness.

				
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Description: Guardianship Differently Abled Person