'Courts Must Appoint Guardians For Dementia/Alzheimer's Patients If Circumstances Warrant': Kerala High Court

Justice Bechu Kurian Thomas remarked that courts must appoint guardians for persons with dementia or Alzheimer's disease if the conditions get worse and if satisfied that the circumstances warrant it.

“A person affected with dementia and Alzheimer's loses his cognitive abilities, which starts worsening with age. Dependency on others for all activities of life, is an inevitable outcome, especially during old age. At such a stage when decisions cannot be taken and property transactions cannot be comprehended, in the absence of a legally appointed guardian, the patient can be subjected to exploitation and prejudice. When the conditions are worse, the Court, if satisfied that the circumstances warrant, must appoint a guardian even for persons with dementia and Alzheimer,” the Court observed.

The petitioner is the sister of the 93-year-old woman who is bedridden and suffering from advanced dementia. The petitioner contended that her sister is incapable of making decisions regarding her personal and financial affairs. She added that her sister is in constant need of assistance and supervision, being mentally, physically and intellectually impaired. She thus sought to be appointed as her sister's guardian to manage her financial, medical and legal interests.

After hearing the parties, the Court directed the General Hospital, Ernakulam to constitute a Medical Board and to submit a report on the medical condition of the petitioner's sister. The Court noted that the patient is severely impaired and even unable to write cheques, pay bills or handle her finances.

It also referred to the Division Bench decision in Shobha Gopalakrishnan v. State of Kerala and Others (2019), which laid down guidelines for High Court to appoint guardians for persons in comatose condition. Noting that the persons suffering from dementia or Alzheimer's were not part of the scope of the decision, the Court opined that the principle laid down therein cannot be mechanically imported in the present case.

The Court also remarked that the petitioner's sister's case would not fall within the scope of the Rights of Persons with Disabilities Act, 2016 or the Mental Healthcare Act, 2017. 

Relying on a 2021 Bombay High Court decision in Vijay Ramachandra Salgaonkar v. State, the Court appointed the petitioner as the guardian to deal with the bank accounts of her sister and imposed several conditions.

Conditions imposed

It was directed that periodical reports must be filed by the petitioner once in 6 months before the Registrar General of the High Court containing particulars of the transactions done in respect of the person and property of the patient and the utilization of the funds received and spent.

The Registrar General was directed to cause an entry regarding the guardian appointment in the register maintained by the Court as per the directions in Shobha Gopalakrishnan v. State of Kerala.

The petitioner/guardian was directed to intimate the Social Welfare Officer about the order of appointment and produce a copy of the judgment.

The transactions on the patient's accounts are to made strictly in accordance with law. If the guardian intends to transfer the patient to another State or country, specific permission has to be obtained from the Court, even in cases for availing better treatment or otherwise.

It was also made clear that any relative or next friend of the petitioner's sister can approach the Court for removal of guardian if any neglect or abuse of powers or such other conduct is noticed.

Thus, it disposed of the plea.

Counsel for the petitioner: P.M. Joshi, Siji K. Paul, Sruthi Sunilkumar, C. Gokulkrishnan

Counsel for the respondents: Laya Mary Joseph - Govt. Pleader, Johnson Gomez, Sanjay Johnson, Sanjith Johnson, Arun Johny, Deebu R., Abin Jacob Mathew, Sanketh Sajan Mathew