The Court, in its capacity as ‘Parens Patriae’ or ‘Big Guardian’, can take appropriate decisions which are in the “best of interest of the dependent person” in the absence of a legal provision to appoint a family member of the person suffering from mental disorder as legal guardian.
The observations were made by a division bench of Justices Sunil Shukre and Firdosh Pooniwalla on October 6 while hearing a plea by a woman seeking to be appointed as a legal guardian of her mother, who is suffering from Alzheimer disease.
The judges said that neither the Mental Healthcare Act nor the Hindu Minority and Guardianship Act provided any provision to appoint a child or sibling of a senior citizen, who is also suffering from mental disease, as his/her legal guardian.
It said: “Unfortunately, there is no provision of law made in either Hindu Minority and Guardianship Act or in the Mental Healthcare Act or any other Act for conferring such a status upon the guardian of a person dependent upon him or her on account of mental disorder.”
“But, the lack of or any deficit in the legal framework, in our considered view, must not be such a handicap for this court to shy away from providing relief in such a case. After all, the underlying idea of guardianship is of protection and welfare of the person in need of care and protection,” the bench underlined.
Mother suffering from Alzheimer’s disease
According to the petitioner, her widowed mother was suffering from Alzheimer’s disease and was unable to take care of herself due to her deteriorating condition. Hence, she urged the court to appoint her as her mother’s legal guardian.
A report was submitted by a neurologist of the state run JJ Group of Hospitals stating that senior citizen is suffering a progressive decline in health condition, and the same is so much that she has “severe impairment of executive function and also major cognitive decline, rendering her dependent for activities of daily living”.
“Such a health condition is, in our opinion, reasonably indicative of suffering of mental disorder,” the bench noted in its order.
“Protector, a provider and a facilitator”
The bench noted that when a person becomes dependent upon others to this extent, the person on whom the responsibility falls to take care of such a dependent person, she could be called as a “protector, a provider and a facilitator” for all purposes for such a dependent person.
The bench, however, said that the person would not be able to effectively provide such care and protection to the dependent person unless some legal recognition is made.
The bench appointed the petitioner as legal guardian of her mother and directed all authorities concerned to allow her to “operate or manage the movable and immovable properties” of her mother.
The HC has also directed the Member Secretary of Maharashtra State Legal Services Authority to monitor petitioner’s functioning as her mother’s legal guardian and shall submit to the said Authority a bi-monthly report for the next two years.