Human suffering is integral to one's life, and when it crosses human confines, the ordeals can only be imagined, observed the Bombay High Court while appointing a son as the legal guardian of his 71-year-old father who, for two years, has Alzheimer's disease.
HC addressed the vacuum in law
The Court noted that a vacuum exists in law, wherein no urgent relief is available to a person suffering from mental infirmities. However, such a vacuum in law cannot adversely affect the pressing human needs and certainly does not render the Court powerless.
The HC was hearing a petition filed by the son seeking to be appointed legal guardian to his aged father.
"The inability of the father to look after himself and his property on account of old age deformities and the circle of incapable suffering has made the petitioner-his son knock on the doors of the Court," said a division bench of Justices Girish Kulkarni and Firdosh Pooniwalla in a January 12. The detailed order copy was made public on Friday.
'No provision in the existing laws,' highlighted Court
The Court said that there is no provision in the existing laws – the Mental Healthcare Act, 2017 or under the Hindu Minority and Guardianship Act – to appoint a child or sibling of an aged person suffering from mental health issues as such person's legal guardian.
The bench also noted that the existing laws do not provide a concrete mechanism for the urgent appointment of legal guardians of adults medically incapacitated to make their own decisions and manage their properties.
"Such vacuum in law, however, cannot adversely affect the pressing human needs, not only to cater to the person's medical expenses but also to the effect that such situation does not prejudicially affect his property and prevent the same from being wasted and/or not enuring to his benefit in such helpless situation," the bench underlined.
Advocate Mahesh Londhe, appearing for the son, submitted that his mother, who is a senior citizen and not in the physical condition to look after her husband, and his brother, who has settled abroad, gave no objection to him being a legal guardian of the father.
The court directed JJ's dean to examine the father's mental health
On January 3, the Court directed the dean of JJ Hospital to form a medical board to examine the father. In its report dated January 9, the board said the senior citizen has a "major cognitive disorder" involving a progressive and irreversible cognitive decline with a "recent memory loss and incapacity to do simple maths".
Advocate for central government and state advocate Jyoti Chavan submitted that the Mental Health Act provides for mental healthcare and services for persons with mental illness. However, there is no provision where a person in "urgent circumstances" can seek a declaration to be appointed a guardian of a person with such mental infirmities.
"... the Court is not powerless to resolve such human problems and difficulties which would arise regarding the property of such persons considering their medical condition. The law would thus come to the aid of such ailing person in managing his property by his next kith and kin by appointing a legal guardian," the Court said while appointing the son as the father's legal guardian.
