FINANCIAL PLANNING FOR SPECIAL NEEDS FAMILIES – PART 3
In today’s blog, I have discussed about ‘Guardianship’ . as we know, life is very fragile. Specially, after the world was attacked by Coronavirus, we all realised how uncertain life can be. And when it comes to families with special needs children, there were innumerable instances where children had become orphans and there was nobody willing to take their responsibility owing to their disabilities. What can be more heart breaking than this!
However, we can safeguard our children from such traumatic situations by smart planning. Appointment of a ‘Legal Guardian’ is one such step. Even if parents are no more, the duly appointed Legal Guardian takes care of the child, whether it’s the property, investments, important decisions regarding surgeries, medicines, therapies, etc.
Now, Let’s briefly understand about Guardianship.
o Who is a Guardian?
A person appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed the guardian.
o What is the role of a Guardian?
The guardian takes all legal decisions on behalf of the person and the property of the ward. Other than legal, he also takes important decisions/actions such as medical related decisions like surgery, etc., opening & operating bank account on behalf of the person of whom he is the guardian, making investments, etc.
o Who is a Minor (including special needs child) & Why does he need a guardian?
A Minor is a person who has not completed 18 years of age, hence is considered unfit to take decisions for himself, which can be binding on him as regards others. A minor person is treated in law as incompetent to enter into contract with a person who is an adult. Hence, a minor has been considered unfit to represent himself except through his guardian. Therefore, in all matters, a guardian takes decision on behalf of the minor for protecting the interests of minor and his property.
A parent can appoint a guardian for his minor child (who may also be a person with disability) under a ‘Will’ or other testamentary instrument.
Also, separate guardians can be appointed separately for the care of the person and for the care of the property of the person with disability.
o Other than a minor, who else needs a guardian?
A person who because of his physical and mental deficiencies is unable to take care of himself or his property may also need a guardian.
o What happens in case of a Special Needs Person who is not a minor?
Persons with autism, cerebral palsy, mental retardation and multiple disabilities are in a special situation. Even after they have acquired 18 years of age, they may not always be capable of managing their own lives or taking legal decisions for their own betterment. Hence they may require someone to represent their interests in the legal areas throughout their lives.
However, in cases of cerebral palsy and multiple disabilities, there may be a need for only limited guardianship.
o Who is the governing authority for the appointment of a legal guardian for persons with Autism, Celebral Palsy, Mental Retardation & Multiple Disabilities?
Section 14 of the National Trust Act – the Local Level Committee (LLC) headed by the District Collector is empowered to receive application and appoint guardians for persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities.
o Who cannot be appointed as a guardian of a person with disabilities?
o A friend of a person with disability cannot apply for guardianship unless recommended by a parent or a sibling or a relative
o A person living abroad
o A person who is not a citizen of India Also, both the guardian and the ward must be living within the jurisdiction of the LLC.
o What happens in case, due to any reason, a guardian is unable to discharge his duties?
In case the guardian is unable to discharge his duties, the LLC can remove him and appoint another guardian and can also vary his powers accordingly.
Hope, this blog was able to build a basic understanding about Guardianship. However, in case, you have some query, you can email on firstname.lastname@example.org or WhatsApp on +91 9910353219.
Author Shivani Lohia
Shivani Lohia is a Chartered Accountant by profession and mother to 8 years old child on the autism spectrum. The cause of autism awareness is very close to her heart and she strongly believes in equal education for all & strongly advocates inclusion. She has been homeschooling her son since he was 5 years old.
Creative representation for this blog is done by our extremely talented CreativeSaathi associate Morpheus Nag.