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Madras High Court directs Collector to appoint brother of mentally ill woman as her guardian 

January 25, 2023 10:02 pm | Updated January 26, 2023 10:45 am IST - MADURAI

The Madurai Bench of the Madras High Court has directed the Collector to appoint the brother of a woman, who is is suffering from chronic schizophrenia, as her legal guardian.

The court was hearing a petition filed by the woman’s brother who sought a direction to the authorities to appoint him as her legal guardian, as he was taking care of his sister, who was dependent on her family members for her day-to-day activities . The authorities issued a certificate in this regard, assessing the woman’s disability at 60% in IDEAS scale.

When the petitioner approached the authorities with a plea to appoint him as her legal guardian, it was rejected on the ground that under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (Central Act 44 of 1999), there was no provision for appointing legal guardian for a person with mental illness. He challenged the order.

Justice G.R. Swaminathan observed that in the 1999 Act, the expression ‘severe disability’ meant disability with 80% or more of one or more disabilities. The Rights of Persons with Disabilities Act, 2016 (Central Act 49 of 2016) talked about ‘benchmark disability’ which referred to a specified disability of not less than 40%, and did not employ the expression ‘severe disability’.

The expression ‘person suffering from multiple disabilities’ occurring in Section 2 (j) of the 1999 Act must be understood to mean ‘a person with benchmark disability’ as defined in Section 2(r) of the 2016 Act.

Adopting such an approach would enable the local-level committee to deal with cases of appointment of guardian for persons suffering from any kind of disability. The committee constituted under the Central Act 44 of 1999 should not confine itself to cases of congenital conditions such as autism, cerebral palsy and mental retardation. They should also deal with other disabilities. The 1999 Act should be applied in the light of the new 2016 RPwD Act.

If the local-level committee under the 1999 Act had the power to appoint guardian it would enable easier and quicker access to justice, the judge observed.

The petitioner’s sister was suffering from 60% disability. As per the definition in the 1999 Act, only if the person was suffering with more than 80% disability, it would come under the severe category. The concept of severe disability had been given up in the 2016 Act. The materials on record clearly indicate that the petitioner’s sister was suffering from benchmark disability. A case for appointing a guardian has been clearly made out, the judge observed.

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