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The Bombay High Court has appointed a daughter, a working woman, as a legal guardian of her mother who is suffering from Alzheimer’s disease.
The bench held that there was “nothing adverse” to the capacity of the petitioner daughter who possessed sufficient means and health and on whom the mother is fully dependent for daily living and medical expenses and there were no criminal antecedents against her.
The court had earlier noted that there were no provisions under the Mental Health Act, 1987, or the Hindu Minority and Guardianship Act, 1956, that allowed a son, daughter, or sibling of an elderly person suffering from mental health issues to be appointed as a legal guardian for that individual. However, it said that lack of any legal framework must not restrain it to grant relief in such a case to protect a person in need of care and attention.
A division bench of Justice Sunil B Shukre and Justice Firdosh
P Pooniwalla passed a verdict on October 6 in plea by a 35-year-old woman who had stated that she is the only child of an ailing mother and had been taking care of her day-to-day needs and expenses including those required for medical treatment.
The petitioner said that she has already appointed a caretaker for her mother and while there is no provision under any existing law to get her appointed as legal guardian for her mother suffering from Alzheimer’s, a mental disorder, and the HC can use its inherent powers and declare her to be the legal guardian, which it had done in similar cases.
The HC had last month asked the dean of state-run J J Hospital to appoint a competent neurologist to examine the petitioner’s mother and submit a report of the assessment.
The report of an expert doctor stated that the petitioner’s mother was suffering from Alzheimer Disease (Frontal Variant), which has progressive irreversible cognitive decline and she required constant nursing care, rendering her completely dependent for activities of daily living and other needs.
“Such health condition is, in our opinion, reasonably indicative of suffering of mental disorder,” the bench noted.
It added, “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.”
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The bench noted that the present case was a fit case for exercising the role of “Parens Patriae or Big Guardian” to take a decision in the “best interest” and “welfare” of a dependent person.
Therefore, it held the petitioner to be “eminently suitable” to discharge responsibilities of legal guardian including managing movable and immovable properties of her mother.
It asked the Maharashtra State Legal Services Authority (MSLSA) to monitor the functioning of the petitioner as a legal guardian and submit bi-monthly reports for next two years and disposed of the plea.