No law to appoint a guardian for a person in coma
No law exists in India that provides for a mechanism or procedure to appoint for a person in comatose state. However, there is a law that provides for appointment of guardian for a minor as well as the persons with disabilities like mental retardation.
HC can appoint a guardian in such case
In the absence of any law which deals with the issue of a person in comatose state, the High Court, in exercise of power under Article 226 of the Constitution, can appoint a person as guardian for a person in coma state and grant such guardian permission to deal with moveable and immovable properties of that person.
In this case, Kumudben Arvindbhai Vadera v State of Gujarat, the wife of the person in coma approached the court as petitioner and she seeks his guardianship because she is drained out of her savings and wealth for treatment of her husband in comma.
The High Court, in this case, ordered the wife to be the Guardian and Manager of her husband. The High Court fixed some conditions for spending and appointed an appropriate official to supervise the spending.
The court adds that the petitioner shall be liable regarding any dispute relating to the movable or immovable properties of the patient arises. While selling the immovable properties or movable properties of her husband, the petitioner will ensure that best possible price or consideration is obtained and the details must be reported to the court.
Rules issued by Kerala HC in such a case
The Kerala High Court in Shobha Gopalakrishnan v State of Kerala issued some norms/guidelines as a temporary measure till a new legislation is made and they are as follows: –
- petitioner/s seeking for appointment of Guardian to a person lying in comatose state shall disclose the particulars of the property, both movable and immovable, owned and possessed by the patient lying in comatose state.
- The condition of the person lying in comatose state shall be got ascertained by causing him to be examined by a duly constituted Medical Board, of whom one shall definitely be a qualified Neurologist.
- A simultaneous visit of the person lying in comatose state, at his residence, shall be caused to be made through the Revenue authorities, not below the rank of a Tahsildar and a report shall be procured as to all the relevant facts and figures, including the particulars of the close relatives, their financial conditions and such other aspects.
- The person seeking appointment as Guardian of a person lying in comatose state shall be a close relative (spouse or children) and all the persons to be classified as legal heirs in the due course shall be in the party array. In the absence of the suitable close relative, a public official such as ‘Social Welfare officer’ can be sought to be appointed as a Guardian to the person lying in ‘comatose state’.
- The person applying for appointment as Guardian shall be one who is legally competent to be appointed as a Guardian
- The appointment of a Guardian as above shall only be in respect of the specific properties and bank accounts/such other properties of the person lying in comatose state; to be indicated in the order appointing the Guardian and the Guardian so appointed shall act always in the best interest of the person lying in ‘comatose state’.
- The person appointed as Guardian shall file periodical reports in every six months before the Registrar General of this Court, which shall contain the particulars of all transactions taken by the Guardian in respect of the person and property of the patient in comatose state; besides showing the utilization of the funds received and spent by him/her.
- The Registrar General shall cause to maintain a separate Register with regard to appointment of Guardian to persons lying in ‘comatose state’ and adequate provision to keep the Reports filed by the Guardian appointed by this Court.
- It is open for this Court to appoint a person as Guardian to the person lying in comatose state, either temporarily or for a specified period or permanently, as found to be appropriate.
Reference
- Kumudben Arvindbhai Vadera v State of Gujarat [ Special Civil appeal No 1536 of 2020 dated 28 /9/2020]
- Shobha Gopalakrishnan v State of Kerala
