Legal Guardianship Process for a Downs Syndrome in India
This is my attempt in trying to document the process that most parents or family members avoid when having a dependant child suffering from a mental illness and the child cannot take decisions themselves when it comes to any official procedures such as property, bank accounts, passport, identification documents, etc.
My sister – Khadija is a downs syndrome child. She is at present 35 years (updated in 2021) and is physically completely capable. Yet as she is a mentally handicapped child, she cannot take any decisions by herself. In this situation, the parents become the natural guardians whereby they are granted the right and duty to perform and take decisions on her behalf and are entitled the Guardians.
But unfortunately our case, our parents have passed away and out of sheer bad luck or ignorance, my parents weren’t aware of any legal consequences in such a situation and therefore a Will was never made (i’ll talk about how Important a Will is in one of my later blogs). Now because our parents have passed away and I being the only brother and immediate family member to Khadija, logically I should be a natural guardian, correct? NO. India recognises guardians as parents only and no other. Therefore in our case the way out is to apply for a legal guardianship.
My First Mistake
My dad passed away in 2003 from a brain tumor. My mother passed away in 2007 after fighting a battle with cancer. Now with them gone, I was burdened with legal issues and responsibilities.
My parents had bank accounts and bank lockers with no records updated about the heirs to their accounts. The properties didn’t have my or Khadija’s name in them. This was because some of the accounts were created before we were born or how we plan to fill these “nominees” and “either or survivor” details for a later day which never comes.
Because my parents had two heirs – Me and Khadija and although I am the natural guardian, I cannot take any decisions on her behalf. This I found out when I tried to close a bank account. Thats when I approached a lawyer (a good one) and he told me that the procedure was a long one (now ofcourse I would later find out that what he was mentioning was a different legal guardianship).
Two and a half years later, I was still struggling with documentation and affidavits and rejections from banks that this was not going to work and that I needed additional documents. Till today I have no clue why banks rejected my applications and affidavits when they didn’t know where or what the correct one was like. This I used to do in office hours and endless disappointments after being hushed off during lunch hours and off days and the busy end-of-the-financial-year days (such as from march end which usually starts in feb and lasts till June – ridiculous) and one of the best ones – the procedure starting with one employee and that employee being transferred and the new one claiming that there was no handover and to restart the entire procedure.
My biggest error was to higher the lawyer. I didn’t realise then which I do today is that my situation is a one off case which is terribly uncommon. The lawyer that helped me with the paperwork was actually following the “Divorce-Legal-Guardianship” paperwork process and then later moved to an “Adoption-Legal-Guardianship” paperwork process. One fine day I was visiting her school when they mentioned that I need to apply for her legal guardianship and that is when they told me of the process.
The Application Process
I was told to visit the district “Zilla Parishad” or the District Council – a local government body at a district level that looks after several functions. See here for more info. After sheer hunting and asking, I was told to visit a fancy building (which is very unlikely for a government building in India) in Camp, Pune.
There I was told to visit the department for social services. Now after having such a bad experience with government officers and government banks, I was expecting the worst. But to my amazement, I was welcome and was seated in the department. I was met by a representative of their committee who asked me my entire issue and said “No Problem – Ho Jayega. Aap yeh sab documents le kar aaye, hum karva lenge” (Translation : No Problem – The work will be done. Get all these documents and we will get it done). I was so overwhelmed with her response that I shed a tear or two, so she told me that its alright and I am not alone – they will help me out.
I was told to submit a photograph of mine (and my aunts as I wanted her to be a legal guardian as well) with Khadija. Additionally there was a birth certificate or ID proof and address proof to be submitted along with an affidavit (format was provided). I got these documents and submitted them in about a weeks time. I was told to wait for a month and I would get the certificate. They also asked me if I want a translated certificate as the original one comes in the Marathi (the state regional language).
The local government body for social services meet twice in a year or thrice in a year and accept and study these applications. They assess whether I am financially capable to take care of such a child, whether do I have my own apartment (no liabilities), basic appliances for entertainment such as TV, computer, etc for the child, whether I would send the child to a special school, etc.
Why This is Important
I can’t stress less on how and why this certificate is important for those parents who have their child and want it taken care of. Everything depends on this certificate. I can now add her to my property, claim any property which is on my parents name and as no heirs are mentioned (by mentioning that we are two heirs and provide a No Objection certificate on behalf of my sister), add her to my bank accounts as a secondary account holder or survivor (with an additional guardian of course), apply for a passport, get her admitted in a hospital or take decisions on her behalf in emergencies, etc.
This document is the most important unless you have a Will which overpower this. But yes you would still need to apply for this.
Share if you have any such experiences or doubts about my experiences.