- Legal capacity is presumed. The Rights of Persons with Disabilities Act, 2016 recognises that a person with disability has legal capacity on an equal basis with others, including in financial matters and inheritance.
- A specially abled adult can be a beneficiary under a will, and can own, hold and receive property in their own name.
- Where the adult understands what they are doing, they can make their own will. The Indian Succession Act, 1925 allows a person with a mental or sensory disability to make a will if they know what they are doing at the time, including during lucid intervals.
- As a beneficiary, the adult can accept the bequest, and should be informed about what has been left to them and who is managing it.
- The adult has the right to support in decision-making, not a decision taken over their head. They should be consulted by the guardian, trustee and executor on matters affecting them.
- The adult has a say in who looks after them, and their wishes and preferences should be taken into account while a guardian is chosen.
- The adult can ask the appointing authority to review, change or remove a guardian if they are neglected, abused or their property is misused.
- The adult is entitled to live with dignity, to have access to healthcare, education, training and support services, and to have the bequest used for their benefit.
- Where the adult has the capacity to do so, they remain responsible for their own acts and ordinary dealings, with only such support from the guardian as the order of appointment allows.
- Where the disability is a mental illness, the Mental Healthcare Act, 2017 also allows the person to appoint a nominated representative and to make an advance directive for their care.
Roles and Responsibilities of a Guardian of a Specially Abled Adult
01
Laws that apply
- National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. The Local Level Committee, headed by the District Collector, appoints guardians for persons with autism, cerebral palsy, intellectual disability and multiple disabilities. It does not cover mental illness.
- Rights of Persons with Disabilities Act, 2016. It provides for limited guardianship, appointed by the District Court or the designated authority, and applies to all disabilities including mental illness. It recognises that the person keeps legal capacity, including in matters of property and inheritance.
- Mental Healthcare Act, 2017. Where the condition is a mental illness, the person can also have a nominated representative and an advance directive for care.
- Indian Succession Act, 1925 governs the will, and the Indian Trusts Act, 1882 governs a trust if one is created for the beneficiary.
02
Appointment of a guardian
- Appointed by the proper authority. A will cannot by itself make a person the legal guardian of an adult. The person named in the will is only a nominee and has to apply to the Local Level Committee or the District Court or designated authority after the testator's death.
- The guardian is a limited guardian. Guardianship under the Rights of Persons with Disabilities Act is a system of joint decision-making based on mutual understanding and trust, and is limited to a specific period, matter or decision. Courts have held that permanent guardianship is not recognised.
- Guardians appointed under the older laws are also treated as limited guardians and must consult the person while taking legal decisions.
03
Duties of the guardian
- Supports the adult in making decisions, and consults them and takes their consent wherever possible.
- Looks after the adult's personal welfare, including daily care, health and medical needs, residence, education or training, and access to support services and government schemes.
- Protects the property the adult receives under the will, and manages it only for the adult's benefit and care.
- Does not sell, transfer or deal with the property for personal gain, and keeps the adult's property separate from their own.
- Keeps proper accounts of income and expenses and gives them to the appointing authority when required.
- Acts only within the powers given in the order of appointment, and only for the period or matter stated in it.
- Applies for an extension before the period of guardianship ends, where the adult still needs support.
- Remains answerable to the appointing authority. Under the National Trust Act, a guardian can be removed for abuse or neglect of the person.
04
Additional responsibilities of the guardian
- Protects the adult from abuse, neglect and exploitation, and does not use their money, documents or dependence for the guardian's benefit.
- Respects the adult's dignity, privacy and choices, and does not move them to an institution or another residence unless it is needed for their welfare.
- Obtains and keeps safe the adult's disability certificate, identity documents, bank records and insurance papers, and renews them when due.
- Claims the pension, benefits and scheme entitlements the adult is eligible for, and makes sure the money reaches their own account or the trust.
- Co-ordinates with the executor and the trustee so that the bequest is handed over properly and used as the will directs.
- Arranges medical insurance and other protection for the adult, and plans for their care needs as they grow older.
- Informs the appointing authority of any major change in the adult's condition, residence or property.
- Reviews the adult's needs from time to time and keeps a written record of the important decisions taken for them.
- Represents the adult in legal or official matters only within the powers given, and with their involvement.
- Plans for the future by naming or helping to find a successor, so that care does not stop if the guardian dies or can no longer act.
05
What the will can do
- Nominate a preferred guardian and a successor guardian. This is only a wish. The appointing authority takes the final decision and the nominee must still apply.
- Leave the property in a trust with a trustee, instead of giving it outright to the beneficiary, so that it is managed for their care and living expenses.
- Keep the roles of the guardian (care of the person), the trustee (management of the property) and the executor (administration of the estate) separate and clearly named.
- Direct how the money is to be used for care and medical needs, and ask for periodic accounts from the trustee.
- Check which Act applies to the beneficiary's disability, as this decides whether the guardian applies under the National Trust Act or the Rights of Persons with Disabilities Act.
