Legal Guardianship

  1. Who can be appointed as a legal guardian for special needs child care?

Preferably blood relatives are appointed as Legal Guardian for the special needs child care. A friend of PWD can be appointed as a Leal Guardian only if parent or sibling of the PWD recommend or apply. A friend cannot himself apply for the legal guardianship.  However, through Will parents can appoint any trustable person as a legal guardian.

  1. Does National Trust have powers to remove the guardian?

Yes. The National trust under Sec 17 of the national trust act has been granted powers to remove the appointed Legal Guardian.  However, National Trust can act only when an application is received by them from parents or relative of the special need child.

  1. Does a court have any monitoring process on the guardian?

National Trust does have a monitoring process in which the legal guardian is asked to submit documents related to the financial affairs of the special needs child. This submission is at 2 stages- One during the appointment as legal guardian and second on annual basis. But there is no monitoring for day to day affairs of the child. Its only when any individual or institutions related to the child affairs complaint to national trust the matter is taken. Similarly if the legal guardian is appointed by the court and not national trust then also some monitoring may be set up for managing. Similarly the court can set submission of relevant papers may be at frequency but does not set any process for day to day affairs.

  1. How to obtain the legal guardianship?

Here is an infographic which illustrates the complete process of seeking legal guardianship –

Infographics

  1. How to appoint a legal guardian after the parents?

There are 2 legal documents through which future Guardian can be appointed. One and the most important is the Will which will carry the provision of who will be the guardian for the child in the absence of parents. The parents can write specifically the duties and responsibilities of the guardian. The other legal document is Letter of Guardianship which can be written to appoint the future guardian.

  1. Is a guardian appointed through Will advisable?

Yes, parents should appoint a future guardian through the Will. In the absence of a Will, the court will have to appoint the guardian which can be a lengthy legal process. By appointing through Will its’ make it easier for the legal guardian to obtain the guardianship. Alternatively, parents can also appoint a legal guardian through a letter of guardianship. Then benefit of this is that the Letter of Guardianship is independent of the Will and so not impacted by the probate process.

  1. Can guardian be given complete financial and legal powers?

The legal guardian of the child can be restricted to personal affairs or can be handed both personal and financial affairs of the child. It’s up to the parents what powers they wish to give to the legal guardian. For good reasons, the guardian can be restricted to personal affairs and he/she can work with trustees of the trust for managing financial affairs.

  1. Can a guardian be also appointed as a trustee of the trust?

There are no restrictions and a guardian can also be appointed a trustee in the family private trust. But it’s advisable to have 2 different persons to avoid any conflict of interest.

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