Sep 19,2020 | 05 min read

Procedure To Appoint A Legal Guardian For A Person Under A Vegetative Condition Or Coma

In its recent judgement in Vandana Tyagi Vs Government Of National Capital Territory Of Delhi (2020), Delhi High Court has reiterated the guidelines laid down by a division bench of the Kerala High Court (Shobha Gopalakrishnan Vs.  State of Kerala and Ors., 2019) on how to deal with cases regarding the appointment of a legal guardian for comatose persons. These guidelines were issued by the Division Bench of  Kerala High Court and followed by the Delhi High Court since no specific provision is available in any Statutes to deal with the procedure for such appointment of Guardian to a victim lying in 'comatose state'.   The Kerala High Court in its Judgement has rightly come to the rescue of the victim and held that it is necessary to stipulate some 'Guidelines', based on the inputs gathered by the Kerala High Court from different corners.

Reiterating the same, the Delhi High Court has held as under:

(i) A person(s) who seek(s) to be appointed as guardians vis-à-vis an individual, who is lying in a comatose state, shall in their petition to the court disclose the details of all tangible and intangible assets of such an individual.

(ii) The court will have the person lying in comatose examined by a duly constituted medical board which would include, inter alia, a neurologist.

(iii) The court will also direct the concerned SDM/Tehsildar in whose jurisdiction the person lying in comatose is said to be located to carry out an enquiry to establish the veracity of the assertion and to gather material particulars concerning the person(s) who approach the court for being appointed as guardians. The enquiry will gather information as regards matters which may have a material bearing in their discharging the duties of a guardian. Any conflict of interest concerning the affairs of the person lying in comatose state will be brought to fore in the report generated during the course of the enquiry.

(iv) Ordinarily only that person will be appointed as a 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. In the event, the person lying in comatose has neither a spouse nor any children or even any legal heirs or if he/she has such persons in his life but stands abandoned by them subject to the permission of the court his next friend who wishes to be appointed as a guardian can approach the court with such a request. In the alternative, the Court could direct the Department of Social Welfare, GNCTD to appoint a public official such as a Social Welfare Officer or a person holding equivalent rank to act as the guardian of the person lying in a comatose state.

(v) Only that person shall be appointed as a guardian who is otherwise in law competent to act as a guardian.

(vi) The order directing the appointment of a guardian shall specify the assets qua which the guardianship order is passed. The court will be empowered to modify the order in the interest of the person lying in a comatose state.

(vii) The person appointed as a guardian will file every six (6) months (or within such period as the court may indicate in its order) a report on the transactions undertaken by the guardian in respect of the assets of the person, with the Registrar General of this court. 

(ix) It will be open to the court to appoint a guardian either temporarily or for a limited period, as may be deemed fit.

(x) In the event, the guardian appointed by the court misuses his/her power or misappropriates, siphons or misutilizes the assets of the person lying in a comatose state or fails to utilize the assets in the best interest of the person lying in a comatose state, the court would have the power to remove the guardian and appoint another person in his/her place. The substituted person could also be a public officer such as a Social Welfare Officer or an officer holding an equivalent rank.

(xi) The guardian appointed by the court shall intimate his appointment to the public official/Social Welfare Officer or officer of an equivalent rank designated by GNCTD. 

(xii) The guardian appointed by the court will ensure that the transactions entered into by him or she comports with the relevant provisions of the law.

(xiii) In case a relative or a next friend of the person lying in the comatose state finds that the guardian is not acting in the best interest of the person lying in a comatose state, such person will also have the locus to approach the court for issuance of appropriate directions and/or for removal of the guardian.

(xiv) In case, the guardian wishes to move the person lying in a comatose state to another state or even to another country for the purposes of securing better medical treatment for the person lying in a comatose state, he/she would approach the court for necessary permission before undertaking such an exercise.




LLM Medical Law and Ethics (distance learning)

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