The Hon’ble Allahabad High Court in a Writ Petition Uma Mittal and Others vs. Union of India and Others on 15.06.2020 gave certain guidelines as to how a guardian is to be appointed for individuals in comatose state. The Writ Petition was filed by Uma Mittal whose husband is in a comatose state. The Petitioner by way of the said Writ sought relief of being appointed as the guardian of her husband in order to protect his interest, manage his accounts, immovable property etc. and use the proceeds from the same for his medical treatment and family welfare expenses.
On 22.12.2018 the Petitioner’s husband fell in bathroom and suffered severe head injury. The C.T. Scan showed that the Glasgow Coma Scale (GCS) was 6 (E1V1M4) and pupil right NSRL and the left one is dilated and non-reacting. After several months of treatment and check-ups the doctors opined that the husband will remain in comatose conditions and would require continued supportive treatments for rest of his life.
The Hon’ble High Court taking into account the vegetative state of the husband and his medical expenses and decision of Shobha Gopalkrishnan and Others vs. State of Kerala and others (2019) SCC Ker 739 set guidelines till an appropriate enactment is legislated as to how guardians are to be appointed vis-à-vis an individual who is lying in comatose state.
These guidelines are as follows:
- The person intending to be appointed as the guardian vis-à-vis an individual lying in comatose state shall in their petition to High Court disclose all intangible and tangible assets of person lying in comatose state. Further, the location and approximate market value shall also be disclosed. In case of bank accounts, stocks etc. material particulars will be provided.
- The Court will have the person lying in coma examine by a duly constituted medical board which will include a neurologist.
- The Court will direct the concerned SDM/Tehsildar having jurisdiction over location of concerned comatose patient for investigation which includes the background check of both the parties i.e. person lying in comatose state and person seeking permission to be his guardians along with the history of relation and financial details etc.
- Ordinarily only spouse or progeny of the person lying in comatose will be appointed as guardian. Further, the person seeking guardianship in Court will have to disclose details of the heir in the petition.
- Only person who is competent in the eyes of law shall be appointed as a guardian.
- The order which directs the appointment of the guardian shall specify assets qua which the guardianship order is passed.
- The appointed guardian must submit report to the Court in every six months or within prescribed time.
- The Registrar General of the High Court will maintain a separate register for details of the proceedings, particulars of person appointed as guardian and order of appointment.
- The Court will have authority to determine whether the person appointed as guardian is for a temporarily or for specific time period.
10.The Court will have authority to dismiss the appointed guardian in case he is found guilty of misusing his position.
11.If a relative or a next friend of the person lying in comatose state, believes that the appointed guardian is not acting in good faith then they can move to court for removal of such guardian.
- The appointed guardian has to take permission of the court before taking person lying in comatose state to different state or country for better medical treatment.
The guidelines provided are general in nature and the Court will have power to amend the guidelines in accordance to the conditions of each case. Further, the Hon’ble High Court of Allahabad requested the Central Government to consider enacting a legislation for appointment of guardians qua persons lying in a comatose state.