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Only spouse, children can be appointed legal guardian of patient in coma: HC

New Delhi: Only the spouse or children can be appointed as a legal guardian of a person in coma and they will have to disclose the details of all tangible and intangible assets of the patient, the Delhi High Court has said.

The court said if a person in coma did not have any spouse or children or was abandoned by the family, his next friend could be appointed as a guardian with the prior permission from a court.

The high court examined various existing laws -- the Guardians and Wards Act, 1890, the Mental Health Act, 1987 (repealed), the National Trust Act for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, the Multiple Disabilities Act, 1999, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, the Mental Healthcare Act, 2017 and the Rights of Persons with Disabilities Act, 2016.

Justice Rajiv Shakdher said the definitions of these provisions showed a person in coma was not covered. The court noted that a similar situation had arisen before the Kerala High Court, which had in 2019 come up with certain guidelines on how to deal with such cases, and said those guidelines appeared to be robust and could be used in Delhi.

"The guidelines framed by the division bench of the Kerala High Court appear to be robust and, therefore, can be used as a framework for formulating guidelines that need to be applied in the National Capital Territory of Delhi till such time the legislative chasm is filled-up and a specific provision is made as to how guardians are to be appointed qua persons in a comatose state," the judge said.

The guidelines say that persons who seek to be appointed as guardians of an individual lying in coma shall disclose in their petition in the court the details of all tangible and intangible assets of such an individual. The details of the location and approximate market value of the assets, bank accounts, stocks, shares, debentures and other investments shall also be disclosed, they said.

"The court will have the person lying in coma examined by a duly constituted medical board which would include, inter alia, a neurologist," the judge said.

The guidelines also include that the sub-divisional magistrate (SDM) or tehsildar concerned, under whose jurisdiction the person lying in coma is located, shall conduct an enquiry to establish the veracity of the assertion and to gather details of the person who wishes to be appointed as a guardian.

"Ordinarily, only that person will be appointed as guardian who is a spouse or a progeny of the person lying in comatose. The person seeking appointment as a guardian in his petition to the court will, however, disclose the particulars of all legal heirs of the person lying in comatose," the guidelines said.

The person appointed as a guardian would file a report with the registrar of the high court after every six months and if the guardian misused his power, siphoned or misutilised the assets of the patient, the court would have the power to remove him and appoint another person, the guidelines said, adding that the substituted person could also be a public officer such as a social welfare officer or an officer holding an equivalent rank.

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