Guardianship system for persons with disabilities to change

The Ministry of Social Justice and Empowerment has come up with a fresh draft legislation that seeks to do away with the plenary guardianship system and replace it with a limited guardianship system.

What is the plenary guardianship system?

  • Under this system, a guardian substitutes for the person with disability before the law and takes all legally binding decisions for him or her

What is the limited guardianship system?

  • Under the limited guardianship system, decisions will be made jointly on mutual understanding and trust b/w the guardian and the person with disability.

Why this move?

  • This move is made by the The Ministry of Social Justice and Empowerment  in the wake of sharp criticism from disability groups for inability of the Govt to draft a comprehensive Bill that will give full rights to persons with disabilities.

As per the draft: 

  • Person(s) with disabilities (PwD) would relish legal capacity on an equal basis with others in all facets of life.
  • PwD will have the right to equal recognition everywhere as persons before the law.
  • Any disqualification on the grounds of disability ordained in any legislation, rule, notification, order, bye-law, regulation, custom or practice that has the effect of depriving a PwD of legal capacity shall not be legally enforceable from the date of enforcement of the proposed Act.
  • All PwD have the right, on an equal basis with others, to own or inherit property; control their financial affairs; obtain access to bank loans, mortgages and other forms of financial credit, and not to be at random stripped of their property.
  • The legal capacity of a PwD shall not be called into question or refused, regardless of the degree and magnitude of support, by reason of accessing support to exert legal capacity.
  • In case of a conflict of interest b/w a person providing support and a PwD in a particular financial, property or other economic transaction, then such supporting person shall desist from providing support to the PwD in that transaction.
  • Any medical procedure that leads to or could lead to infertility in a PwD without his/her free and informed consent is prohibited.
  • Sizeable fine and imprisonment up to 10 years proposed for violation.
  • All institutions will provide medical and life insurance to their employees with disabilities on an equal basis with others.
  • Every child with benchmark disability, of the age of 6 to 18, shall have the right to free education.
  • All government institutions of higher education and all higher education institutions receiving aid from the government shall reserve up to 5% of the total seats in each course for persons with benchmark disabilities, which include physical, and mental disabilities and leprosy cured.
  • Set up of a National Commission for PwD to devise rules that lay down the criteria of availableness for the physical environment, transportation, information and communications, including appropriate technologies and systems. Like bodies will be set up at the State and district-levels. The Commission will take up issues that breach the requirements of the Act.

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