Name of the organization: Sahyog

Topic: Tookit on Legal Guardianship

Objectives of the toolkit:

1. Explaining what Legal guardianship is

2. Going through why Legal Guardianship is an important aspect and it’s
relevance.
3. Explaining how one should choose a legal guardian
4. Creating an awareness about the application process of Legal Guardianship

~~

Definition of Persons with Disability:

According to the Rights of Persons with Disability Act 2016, A person with Disability means
a person with long term physical, mental, intellectual or sensory impairment which when
there is interaction with barriers present in society, hinders/ sets back the persons full and
effective participation in society. (RPWD Act, 2016)

Defining Legal Guardianship: -

Who is a Guardian: A guardian is someone who is trusted with the care of another person or
their property. He or she takes on the responsibility of caring for and protecting the person for
whom he or she has been appointed guardian. On behalf of the ward's person and property,
the guardian makes all legal decisions. This also refers to the guardianship of a person who
due to physical or intellectual disabilities may be unable to take care of themselves or their
property.

People with Autism, Cerebral Palsy, Mental Retardation, and Various Disabilities are in a
unique position because handling or making legal decisions for their own good even when
they reach the age of 18 might be difficult and As a result, they will need someone to
represent them in legal matters during their life.

What is Legal Guardianship?

There are many reasons that a person might apply for becoming a legal guardian. One of
those reasons is when an individual is a person with disability. The disability could be
congenital/ from birth or acquired early in life due to an accident etc. The person with
disability might not be able to make certain decisions like in terms of financially or legally or
for property purposes. This is where the role of a legal guardian will come in.

The National Trust Act has the provision laid into place that a parent/ another person can be
appointed as a guardian. This guardian will be the person to manage the personal as well as
financial affairs of the person with disability. The guardian not only takes on the
responsibility of care and protection but also any legal decision required.

If we look at Guardianship under the National Trust Act, The Local Level Committee headed
by the District Collector is empowered under section 14 of the National Trust Act to receive
applications in Form A under Rule 16(1) and appoint guardians in Form B under Rule 16(2)
for people with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities. It also
has mechanisms in place to track and protect their rights, including their property.

Thus, As a part of the National Trust Act, a person with serious disabilities will have a
guardian that will represent them throughout their lives. According to the Act, a parent can
acquire legal guardianship of their disabled child and represent them even after they reach the
age of 18. When their child reaches the age of 18, parents are the Natural Guardians of their
children. As a result, they are not required to apply for guardianship before that time.
Following that, the parents will file a guardianship application under the National Trust Act.

Learning more about the National Trust:

The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation, and Multiple Disabilities is a statutory body of the Ministry of Social Justice and
Empowerment of the Government of India, constituted under the "National Trust for the
Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, and Multiple
Disabilities" Act.

Their Vision:

An inclusive community that values human diversity and encourages and empowers people
with disabilities to live peacefully, with dignity, and with equal rights and opportunities.
Mission of the National Trust:

The National Trust works to strengthen the capacity of people with disabilities and their
families, to ensure that their rights are protected, and to encourage and support the
development of an enabling environment and an inclusive society.

The mission, or fundamental aim, of the National Trust is to establish an enabling

atmosphere, i.e., to provide opportunities for Persons with Disabilities through
comprehensive support programmes, which can also be achieved through cooperation with
other Ministries, etc., and which will contribute to the creation of an inclusive society.

The Objectives of the National Trust:

The National Trust, in particular, has the following goals:

1. Enabling and empowering disabled people to live as independently and completely as

possible within and close to their communities;
2. To make it easier for people with disabilities to achieve equality of opportunity,
protection of their rights, and full participation;
3. to provide need-based services to its registered organisations;
4. And to develop processes for appointing guardians and trustees for people with
disabilities.

Nature of the Guardianship:

It is important to note that there are two types of Guardianship.

1. Guardian for the person

2. Guardian for the person and for the property.

Reasons for taking a Legal Guardianship:

Parents typically take the responsibility of their child when they are minors i.e Below the age
of 18. However, in cases of persons with disability, depending on the disability or the degree
of disability there will be need for parents take carry on this responsibility after the age of 18
years. They will need to legally represent their child in various matters. Such as:

For obtaining loans and concessions:

 - Parents may wish to apply for certain concessions or schemes that may be offered by
the Government which is geared towards persons with disabilities. So they may
require to show that they are the legal guardians of the child.
- Taking an example of a scheme that is aimed towards intellectual disability, cerebral
palsy, Autism and multiple disabilities and if it is accessed by the parents of said child
they will need to provide proof of guardianship status.

Banking and financial decisions:

As a person/ parent/ child When it comes to making banking decisions like managing
investments for the benefit of their children with disability. Give an example: Property
(Narration)

Under the NTA the parents can still be the legal guardians of their child with disability even
after the age of 18.

Having guardianship is also helpful when you want to open a bank account for your child.
For example: If a Rahul is a child with Autism (17 yrs) and his parent has opened a bank
account in his name for his future and let’s say she needs access to the bank account for
therapy or medical expenses, in order to be able to access that account she would need to
have legal guardianship.

Example: When Gayatri is person with autism, non-verbal and intellectual disability. When
she was 17 years of age her parents wanted to open a bank account for her. They wanted this
bank account for her so that in her future her financial needs will be taken care of and this
money could be used for other purposes like housing expenses, medical expenses, therapies
she might require. Since she was below still minor her parents were her guardians and thus
they were able to set up an account in her name. At 20 years of age Gayatri had medical issue
and needed to access her bank account. Her parents approached the bank so they could apply
for a loan in her name from her account. However, at the bank they were told that since
Gayatri was not a minor any more they would need to show proof of legal guardianship/ legal
documents stating that her parents were her legal guardians.
For Loans or Concessions:

There are many concessions or loan schemes that are made available by the Government for
the benefit of Persons with disabilities. Like there are certain schemes for loans that are
provided at a concession rate to person with disability. These benefits can be availed by the
legal guardian for the person with disability in the name of the dependent.

For example: Rishi is a person with cerebral palsy and is of 18 years of age. He is applying
for an education loan that is offered by the Government under the NHFDC schemes.
However, between his studies and the non-accessible entrance of the building he is unable to
go to the bank to make an application. However, when Rishi was a minor his elder sister who
helped in taking care of him was appointed as his legal guardian. Therefore, his elder sister
who is above 18 year who is legal guardian can approach the bank on Rishi’s behalf with the
necessary documents to apply for the Education Loan under the NHFDC scheme.

Who can apply for legal guardianship:

There are certain rules that have been laid down in order to become a legal Guardian. The
person applying to become a legal guardian has to be a citizen of India and has to be above
18 years of age.

There are certain case of the absence of parents or demise of parents takes place or in absence
of other legal heirs, person that is concerned with the welfare of the person with disability or
appointed by parents when they were living can apply for legal guardianship. The role of the
guardian must be chosen with utmost care. The role of a guardian is one of utmost care. The
guardian should be someone who can fit in the parent’s shoes, and a person who can take the
right decisions for the benefit of the person with disability.

Things to consider when choosing a legal guardian for you child:

Sometimes there might be situations that are tough and difficult to think about. But it is
important to give thought to them as such situations might occur. There could be an instance
where you might be unable to care for your own child in the event of your death or if you
meet with any injury that prevents you from caring for your child. When choosing an
individual to be a legal guardian it must be a person who you trust with the life of your child.
It must also be someone your child trusts and someone who is comfortable with your child
and vice versa. Name or choosing a guardian is one of the most important decision as a parent
that you can make for and with your child.
1. It needs to be someone who has good parenting skills: Raising a child is not always easy
and caring for a child with disability has its own challenges. You need to pick a guardian you
trust, who is good with your child and who truly cares and will do the best for the benefit of
your child. They need to take care of them not just as a guardian but also as a parent.

2. Taking age into account: When picking a guardian, your thoughts might go to child’s
grandparents (grandparent can make excellent guardians). However, you must consider that
the age factor might make certain tasks difficult. If you’re child requires assistance with
carrying out their activities of daily living and aging grandparent might have their own set of
health issues that might prevent them from assisting.

For example: Harsh is a person with cerebral Palsy. When he was a minor his parents were
legal guardians and just before he turned 18 years his parents applied for legal Guardianship.
They had also prepared a will in the case of their death that Harsh’s grandmother would be
his legal guardian. When Harsh was 25 years of age his parents died in an accident and his
grandmother became applied to become his legal guardian as stated in the parents will.
During that time his grandmother was able to help get into his wheelchair, assist him with his
activities of daily living and physical therapy and even take him to his doctors’ appointment,
however recently his Grandmother has taken seriously ill and is now unable to care for him as
she is completely on bedrest. In this case we can see how the age factor is something that
might affect the care required to be given to a person with disability.

3. Keep in mind finance and family relationships: While picking a guardian for your
child also keep in mind the person’s home structure, do they have regular income or
does their job involve a lot of travel where they may not be able to care for your
child? These factors are all important to think about when choosing a guardian.
Another aspect is, does the guardian get along with other persons in your family, this
is on the assumption that other members in your family will also be in your child’s
life.

4. Providing details: When choosing your legal guardian also provide if you can, in
written format, information about your care plan for you child, that could be nutrition
 instructions, what school you send them or are planning to send them too, what kinds
of therapies they should be receiving, details about their treatment plan if applicable
etc.

5. Structure of the home: Another aspect that should be consider when looking at
picking someone to be your child’s legal guardian is whether their home is accessible.
Whether your child will be comfortable in their home, be able to move around to a
certain extent.

Section 11 of Regulations states:-

- Both the parents may jointly, or, in the event of the absence of one due to death,
divorce, legal separation, desertion or conviction, may singly apply for guardianship
of their or as the case may be his ward beyond the age of 18 years.
- In the event of death, desertion, conviction of both the parents, the siblings (including
half and step siblings) jointly or singly (reason of single application to be explained
separately) may apply for guardianship of a disabled member of the family.
- In the event of non-application of sub-regulation (1) and (2) above, a relative may
make an application for guardianship.
- In the event of non-application of sub-regulation (1), (2) and (3), any registered
organization may make an application for guardianship.
- The Local Level Committee may direct a registered organization to make an
application for guardianship in case of a destitute or abandoned person.

Section 12- Of regulations – Who may be indicated by the applicant as guardian

- Both the parents jointly, or, singly in the event of the absence of one due to death,
divorce, legal separation, desertion or conviction, being natural guardian of minor
may apply to the Local Level Committee to get themselves or himself as the case may
be, appointed as guardian of their or as the case may be, his disabled ward beyond the
age of 18, in which case the application shall be accepted unless the parent is
disqualified on account of-
- loss of citizenship
 - being of unsound mind
- being convicted by a court of law; or iv. being a destitute.
- The applicant may indicate siblings, or any member of the family or any other person
or a registered institution for consideration as a guardian and in case of institutions,
the conditions of eligibility of institutions shall be as stipulated in sub-regulation (3),
(4) and (5).
- In the case of considering the institution as a guardian, the institution must be
registered under a law and be capable of providing care of the person.
- In the event of institution ceasing to be registered under a law or stops functioning, or
is found otherwise unsuitable, the Local Level Committee shall make alternative
arrangements for the foster care of any such inmate or the ward, who is under the care
of any such institute.
- The alternative care under sub-regulation (4) shall not be permanent in nature and
shall be placed by permanent guardianship within a period of one year
- The applicant must be living in the vicinity or close proximity to the place where the
ward has been habitually living at the time of appointment of guardian.
- No single male shall be considered as a guardian for a female ward and in the case of
female wards, the male person shall be given co-guardianship with his spouse, who
shall be master co- guardian.

How to apply:

In order to apply for legal guardianship there are certain steps that one must follow. And this
is with regards to Forms and documentation. The first step would be to fill up Form A and
Form B as mentioned in the point ‘What is Legal Guardianship’. The Local Level Committee
headed by the District Collector is empowered under section 14 of the National Trust Act to
receive applications in Form A under Rule 16(1) and appoint guardians in Form B under Rule
16(2) for people with Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities.
It also has mechanisms in place to track and protect their rights, including their property.
In the Case of An OFFLINE SUBMISSION

1. In order to access Form A and Form B one must go to the Official Government
website of the National Trust: https://www.thenationaltrust.gov.in/content/
2. Then Go to ‘About Us’ and to the left, Click on ‘Nation Trust Act & Provisions’ and
then download the PDF or Directly go to
 https://www.thenationaltrust.gov.in/content/innerpage/national-trust-act--and-
provisions.php and download the pdf.
3. In the PDF file, page no. 34 – page 35 has the Form A that is the Form of application
to the Local Level Committee by a parent, relative or a registered organisation for
appointment of guardian for person with Disability.
4. Page 36 has the Form B that will need to be attached to the application and this Form
is Form of confirmation of appointment of guardian on application made by (1) a
registered organisation, or (2) parent or relative of person with disability.
5. One will also need to Submit along with Form A and B a number of documents which
will be requested by the Local Level Committee. They are-
a) Consent form for appointed guardian which can be download here:
https://www.thenationaltrust.gov.in/content/innerpage/guardianship.php
b) Consent form for the guardian which can be downloaded from the same link as
above.

You will also need to provide and attach:

c) Birth Certificate of the person with disability as may be issued by the

Municipal Authorities/ Registrar of Births/ School Authorities/ Educational
Board.
d) Certificate of residence of the person with disability as may be issued by the
Ration Office, Electoral I.D Card, Passport Office etc. Most often, till the age of
18 years the proof of residence will be available in the Ration Card issued in the
name of the father of the person with disability. If the address has been changed
effective proof of the same must be furnished to the Committee.
e) Disability Certificate issued by any Medical Board or Authority of the State or
Central Government/ Government Hospital/ Government Psychiatric hospital/
Government authorized doctor/ Specialist.
f) In the case of a voluntary organization or institution to be appointed as guardian,
the consent of the parents has to be taken on the reverse of the Application Form.
g) It is not necessary for the Applicant to submit original documents of proof. Self
Attested Photocopies can be submitted and whenever necessary the Committee
can ask for production of the originals for verification.
h) It is also necessary for the Applicant to state reasons for submitting application
singly (where such application is submitted singly). This may be stated in the
 Application Form or additional sheets may be used for the purpose. Where it is
necessary for the Applicant to give details of the extent and nature of personal
care and maintenance to be provided and the details of movable and immovable
property which have to be managed and taken care of by the guardian, the same
may be stated in additional sheets of paper together with proof of the existence of
such properties.
i) Where an Application is submitted for appointment of a guardian for a female
ward by a male applicant, his spouse will have to be appointed as co-guardian. For
such applicants therefore, it will be necessary to submit particulars of his spouse.
If he has no spouse, the application will be of no avail.

In the Case of an ONLINE SUBMISSION:

1. One must go to the official site of the National Trust:

https://www.thenationaltrust.gov.in/content/ . Click on ‘About Us’ then to the left
Click on ‘Local Level Committee and Legal Guardianship’ Click on the ‘+’ and then
Click on ‘Guardianship’ and Press the ‘Click for Legal guardianship Application’
2. Or you can go directly to:
https://www.thenationaltrust.gov.in/content/innerpage/guardianship.php and then
Click on ‘Legal Guardianship Application’.
3. You can also download the PDF version of the form and see what documents and
forms you need to keep ready. Details and documents that need to be uploaded of the
PWD, details and documents of the Guardian being appointed. In this case it would be
better to go through the PDF document and see what forms, signatures, documents of
proof are required.

The application for guardianship for personal care and maintenance shall be accepted to
cover the following areas, namely –

- Food, clothing and shelter needs;

- Health care needs;
- Religious needs;
- Education, training and employment needs;
- Leisure and nutrition needs;
- Protection from exploitation and abuse;
- Protection of constitutional and human rights; and
 - Medical and surgical needs.

This is what Form A and Form B look like. And they are important documents that need to be
uploaded if you are applying online and attached if you are applying offline.
This is what the Online Legal guardianship form looks like and this a screenshot of the pdf
version that can be downloaded from the official website.
The traineer/ Social can go through each step in each of the forms and explain how the form
must be filled.
Conclusion:

The position of legal guardian requires extreme caution. Any decision taken with regards to
the person with disability would have consequences in the future. It is necessary to determine
who should be the guardian who can step into the shoes of the parents. Always bear in mind
how a guardianship can affect the individual's freedom to act on their own behalf, and use the
least restrictive means possible to accomplish what is best for the person. Make every effort
to respect the disabled person's pride and dignity.