Exploring Guardianship for Parents with Teens & Young Adults with Disability in India

As a parent of a teen or young adult with a disability, one of the most important decisions you may face is planning for their future when you’re no longer able to care for them. Guardianship is a legal arrangement that provides protection and care for individuals who are unable to make certain decisions independently due to disabilities. In India, guardianship is a crucial consideration for ensuring your child’s well-being and security, especially as they transition into adulthood.

What is Guardianship?

Guardianship is a legal framework that grants one person (the guardian) the authority to make decisions on behalf of another person (the ward) who is unable to manage certain aspects of their life. In the case of teens and young adults with disabilities, guardianship ensures that a trusted person can make decisions related to healthcare, education, finances, and general welfare.

In India, guardianship is recognized under various legal provisions, such as the National Trust Act, the Mental Health Act, and the Hindu Adoption and Maintenance Act. Each provides different avenues for parents to legally assume guardianship of their child.

Types of Guardianship in India

There are primarily two types of guardianship recognized in India:

1. Natural Guardianship

   • Who it applies to: Parents or close family members are the natural guardians of a minor child, including those with disabilities.

   • When it applies: Parents retain the rights to make decisions about the child’s welfare until they reach the age of majority (18 years). However, when the child has a disability that impacts their ability to make decisions independently, the parent or a relative may apply for continued guardianship even after the child turns 18.

2. Court-Appointed Guardianship

   • Who it applies to: A court-appointed guardian is assigned when an individual with a disability is incapable of making their own decisions and their parents or family members are unable or unwilling to act as guardians.

   • How it works: The court assesses the need for a guardian based on the person’s mental or physical condition and the ability of the family or individuals to provide proper care. The guardian may be an individual or an institution.

   
   

The National Trust Act and Guardianship

The National Trust Act, 1999, provides a legal framework for the guardianship of individuals with disabilities. This Act focuses on the welfare and protection of individuals with autism, cerebral palsy, mental retardation, and multiple disabilities. Under this Act, the National Trust is responsible for creating provisions for guardianship.

Key provisions of the Act:

• Registration of Guardianship: Parents can apply to the National Trust to register their child with a disability for legal guardianship.

• Legal Support: The National Trust also assists in providing legal counsel and information about guardianship.

• Guardianship Options: The Trust provides both family-based guardianship (where a family member assumes responsibility) and institutional guardianship (if no family member is suitable or available).

What Does Guardianship Involve?

Guardianship responsibilities include decisions regarding:

• Healthcare: Making decisions about medical treatments, therapies, or surgeries.

• Finances: Managing financial matters, including income, expenses, and savings.

• Accommodation and Living Arrangements: Deciding where the individual will live, whether at home or in a care facility.

• Education and Employment: Advocating for appropriate education or training opportunities, and facilitating employment, where possible.

Steps to Apply for Guardianship

1. Assess the Need for Guardianship:

   • Before seeking legal guardianship, consider whether your child can make decisions independently or if they will require assistance in adulthood.

   • Talk to healthcare professionals or disability experts to assess their capacity.

2. Consult a Lawyer:

   • Guardianship laws can be complex, so it’s important to consult a lawyer experienced in disability law. They can help you understand your rights and responsibilities, as well as the documentation required.

3. Apply for Guardianship:

   • For court-appointed guardianship, file an application in the local family court, providing medical reports and other documentation that support the need for guardianship.

   • If opting for guardianship under the National Trust Act, visit the National Trust office or their website to get more information on the registration process.

4. Ongoing Oversight and Accountability:

   • Once guardianship is granted, the guardian has to regularly report on the individual’s well-being to the court or the National Trust, ensuring their best interests are continually addressed.

   
   

Alternatives to Guardianship

Guardianship is not the only option available for parents. Some alternatives include:

• Powers of Attorney: This legal document allows an individual (the guardian) to make decisions on behalf of another person. However, unlike full guardianship, it can be time-limited and revocable.

• Trusts: A special needs trust can be set up to manage the individual’s finances and ensure that they receive the necessary care.

Guardianship is an essential consideration for parents of teens and young adults with disabilities in India. As your child matures, ensuring that their rights are protected and that they are cared for in the long term is a priority. The process of setting up guardianship can be complicated, but understanding the different legal pathways available — whether under the National Trust Act, the Mental Health Act, or through family court — is crucial for ensuring your child’s future.

By planning ahead, parents can provide their child with a secure, stable, and fulfilling future, even after they are no longer able to provide direct care.