Though there is no legal provision, a court can appoint a family member as the legal guardian of a person suffering from mental disorder, the Bombay High Court has said.
A division bench of Justices Sunil Shukre and Firdosh Pooniwalla made the observation in an order of October 6 while appointing a 35-year-old woman as the legal guardian of her mother who is suffering from Alzheimer’s disease.
The order became available on Tuesday which incidentally is World Mental Health Day.
The Mental Healthcare Act or Hindu Minority and Guardianship Act unfortunately does not provide for the appointment of the child or sibling of an aged person suffering from mental health issues as legal guardian, the court noted.
The lack of or any deficit in the legal framework must not be “such a handicap for this court to shy away from providing relief,” it said.
A court can act like “Big Guardian” and take appropriate decisions in the best interest of a dependent person in such cases, the judges said.
“After all, the underlying idea of guardianship is of protection and welfare of the person in need of care and protection,” the high court said.
The woman in her plea said that her widowed mother was suffering from an advanced stage of Alzheimer’s disease and was unable to take care of herself. The petitioner sought to be appointed as her legal guardian.
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The court relied on the medical report submitted by a neurologist from the government-run J J Hospital here which stated that the petitioner’s mother was suffering from Alzheimer disease with a “progressive irreversible cognitive decline” which requires constant nursing care and assistance.
“When a person becomes dependent upon others to this extent, obviously the person on whom such responsibility to take care…falls would be a person who could be called as a protector, a provider and a facilitator for all purposes for such a dependent person,” the HC order noted.
But providing such care and protection would not be possible unless there is legal recognition for it, the judges said while allowing the petitioner to operate or manage movable and immovable properties of her mother.
