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The guidelines have been issued by a Single Judge Bench of Justice Rajiv Shakdhar.
The Delhi High Court has issued guidelines on the appointment of guardians for persons in comatose state in the city.
The guidelines, which are issued by a Single Judge Bench of Justice Rajiv Shakdhar, are as follows:
Only that person shall be appointed as a guardian who is otherwise in law competent to act as a guardian.
Ordinarily, only that person will be appointed as guardian who is a spouse or a progeny of the person lying in comatose. Nonetheless, the person seeking appointment as a guardian will disclose the particulars of all legal heirs of the individual lying in comatose in his petition to the court.
The person desirous of being appointed as a guardian shall disclose the details of all tangible and intangible assets of the individual in comatose. In case of bank accounts, stocks, shares, and debentures and other investments, material particulars will be provided.
The court will have the indvidual in comatose examined by a duly constituted medical board which would include a neurologist.
The court will also direct the concerned SDM/Tehsildar to carry out an enquiry to establish the veracity of the assertion and to gather material particulars concerning the person(s) who approach the court for being appointed as guardians.
The SDM/Tehsildar will gather information as regards the relationship between the two, the financial condition of persons wanting to be appointed as guardians and any conflict of interest concerning the affairs of the individual in comatose state.
In the event, the individual in comatose has neither a spouse nor any children or even any legal heirs or if he stands abandoned by them, his next friend who wishes to be appointed as a guardian can approach the court with such a request. In the alternative, the Court could direct the Department of Social Welfare, GNCTD to appoint a public official to act as the guardian of the person lying in comatose state.
A guardian may be appointed by the court either temporarily or for a limited period.
The order directing appointment of a guardian shall specify the assets qua which the guardianship order is passed. The order could be modified to bring within its sweep other assets in the interest of the individual lying in comatose state.
The person appointed as a guardian will file a report with the Registrar General of the High Court every six months or as indicated with respet on the transactions undertaken by him/her in respect of the assets of the individual lying in comatose state.
The Registrar General of the High Court will maintain a separate register on the details of the proceedings, the particulars of the person appointed as a guardian etc. and also preserve the reports submitted the guardian.
The guardian shall also intimate his appointment to the public official/Social Welfare Officer concerned who shall visit the individual lying in comatose at least once in every quarter. The Social Welfare Officer will generate a report of his visit and in case, it is found that the guardian is not acting in the best interest of the individual lying in comatose state, the Social Officer he will move the court, at the earliest, for seeking appropriate directions.
In the event, the guardian appointed by the court misuses his/her power, misappropriates, siphons or misutilizes the assets of the individual in comatose state, the court would have the power to remove the guardian and appoint another person in his/her place.
In case a relative or a next friend of the individual lying in comatose state finds that the guardian is not acting in the best interest of the person lying in comatose state, such person will also have the locus to approach the court for issuance of appropriate directions and/or for removal of the guardian.
In case, the guardian wishes to move the person lying in comatose state to another State or country for the purposes of securing better medical treatment, he/she would approach the court for necessary permission before undertaking such an exercise.
The Court has given liberty to the Department of Social Welfare, Delhi Government to suggest any modifications or additions to these guidelines in order to bring the same in line with the local conditions prevailing in the city.
The detailed guidelines were passed in a petition by the daughters (petitioners) of a woman lying in comatose state, seeking to utilize the Public Provident Fund account with the State Bank of India which was opened and maintained by their deceased father.
The State Bank of India (SBI) had opposed grant of any relief to the petitioners and contended that in order to operate the PPF Account maintained with it, the petitioners were mandated to obtain a “guardianship certificate” from the competent court.
The Court opined that SBI's stand that a guardianship certificate had to be obtained from the concerned district court was untenable. It noted that while the The Guardians and Wards Act, 1890 was applicable only to minors, none of the other Acts referred to by SBI, such as the Rights of Persons with Disabilities Act, 2016, The National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999, Metal Health Act, 2017 or the The Rights of Persons with Disabilities Act, 2016 was applicable to individuals in comaose state.
Therefore, till such time the legislative chasm is filled-up and a specific provision is made as to how guardians are to be appointed qua persons in comatose state, the Court deemed it appropriate to issue guidelines to fill the lacunae.
Accordingly, after following the procedure, the petitioners were appointed as guardians qua the PPF maintained by their deceased father.
The Court also directed the Department of Social Welfare, Delhi Government to ensure that an oversight mechanism is put in place to ensure that the public official/Social Welfare Officer visits the individual in comatose state and submit a detailed report in that behalf.
The petitioners were represented by Advocates Praful Shukla, Umang Kapoor.
Delhi Government was represented by Panel Counsel, Advocate Kushagra Pandey.
SBI was represented by Advocates Akshit Kapur, Tanya Kapoor.
Read the Judgement: