LEGAL CAPACITY / LEGAL GUARDIANSHIP The need to establish an inclusive and universal paradigm of legal capacity is necessary so that

one of the foundational prejudices against persons with disabilities is disassembled. This prejudice has to be addressed for persons with disabilities to move from systems of welfare to regimes of rights. Without legal capacity, it will not be possible to obtain rights guaranteed under the Convention, such as the right to live in the community or the right to participate in political and public life.

Capacity of persons determines whether the persons may make binding amendments to their rights, duties and obligations, such as getting married, entering into contracts, making gifts or writing a valid gift1. A differently-abled person unlike the common perception that they need continuously protection to live their life is a common belief which is incorrect. In the year 1999 as the National Trust was set up by the Government of India to cater to the needs of those with afore-mentioned disabilities and provide a guardian for those who are incapable of leading a life without support; however, there are two forms of guardianship: limited guardianship implying that the guardian has only partial authority restricted to advising as opposed to deciding the course of the person seeking guardianship. The other is complete guardianship wherein the guardian can exercise authority incase he/she feels that the decisions made by his/her ward is not appropriate. With the passage of time it has come to the notice that complete guardianship has now been be equated with substituted decision making implying that the guardian thinks it to be within his/her authority to literally run the life of his/her ward. India has recently ratified United Nations Convention in the Rights of the Disabled Persons (UNCRPD); therefore introducing the concept of legal capacity which has been subject to huge debates. Article 12 of the Convention talks about Equality before law; this article deals with the following aspect: 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
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2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other2 The afore-stated article clearly maintains that Article 14 of the Constitution of India which also talks about equality before law is almost on the same lines; therefore, the discrimination faced by the disabled is a more of a socio-legal legacy. A person with autism, cerebral palsy, mental retardation and multiple disabilities is not necessary completely mentally incapacitated it does not mean that they are incapable of making sane decisions; they might however; need supportive decision making. Supportive decision making is essentially a mechanism to provide help and advice to the person in need. It also implies support in enabling a person to make a right decision for himself/herself but not making the decision. On an individual level Support and not complete control wherein in the guardian is like a puppet master is what is required.

Annex I - Convention on the Rights of Persons with Disabilities http://www.google.co.in/conventiononthepersonswithdisabilities as on 12th December, 2007

The concept of legal capacity will have to be understood in relation to the National Trust Act. Legal guardianship has been interpreted in a narrow way, to the extent that the abilities of people with disabilities have not been taken into account only. To empower the disabled people it is imperative that we think they are capable if we focus on skill development and capacity building, and change regressive attitudes, will the LLCs really be able to support and safe guard the interest of people with developmental disabilities.
ROLE OF LEGAL GUARDIANSHIP A guardian is a person who is appointed to look after another person or his property. He or she assumes the care and protection of the person for whom he/she is appointed for the guardian. The guardian takes all legal decisions on behalf of the person and the property of the ward. Following are the kinds of legal guardianship Natural Guardian Court Appointed Guardian Testamentary Guardian It needs to be understood that a person with any of the four disabilities (Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities) may require legal representation in several areas of life depending upon the facts of his situation. Some of the instances where he or she may need a legal guardian may be seen as thus(1) Guardianship may be needed for loans and concessions (2) Guardianship may be needed for managing investments (3) For opening and operating bank accounts/banking transactions/post office accounts/transactions etc. (4) For subscribing to company shares, mutual funds, bonds, securities in the financial market, prescribed applications invariably ask whether the applicant is a minor and if so, whether the application is submitted through a legal guardian. Legal guardians appointed under the National Trust Act, 1999 would be able to make such applications for the persons with disability even after they have attained 18 years of age. Under the National Trust Regulations, the following persons can apply for appointment of guardians before the Local Level Committee: (Please refer to Handbook on Legal Guardianship, page 5).

All persons who apply for appointment of legal guardianship must fulfill the following criteria They must be more than 18 years of age on the date of the application for guardianship. They must be citizens of India and not of any other country even if they may be persons of Indian origin. They must be of sound mind and are not undergoing treatment for mental disorders. They should not have any record of criminal conviction and generally be persons of good reputations. They should not be themselves dependent on others for their living nor be destitute themselves. They should not be declared as insolvent by any Court of Law. The Local Level Committee will look into all the aspects of the applicant to satisfy itself that the applicant is a person fit enough to be entrusted with the duties of a legal guardian in the circumstances of each case. The Application for guardianship has to be submitted in Form-A (attached to the National Trust Rules) stating the name of the person with disability, the name of the proposed guardian, with all their particulars of parentage, age, date of birth, address, nature of disability. The relationship of the proposed guardian with the ward has also to be stated clearly. For further details, please refer to Handbook on Legal Guardianship, page 6). Confirmation of Appointment as legal guardian Please refer to Guardianship, page 7). Handbook on Legal