INDIA Law and Practice Contributed by: Rishabh Shroff, Kunal Savani and Chirag Shah, Cyril Amarchand Mangaldas
Special Situation of Persons With Autism, Cerebral Palsy, Intellectual Disability or Multiple Disabilities Persons with autism, cerebral palsy, intellectual dis - ability or multiple disabilities are in a special situation as even after they have reached 18 years of age, they may not always be capable of managing their own lives or taking legal decisions for their own better - ment. However, in cases of cerebral palsy and multi - ple disabilities, there may be a need for only limited guardianship because of the availability of enabling mechanisms or scientific facilitations which enable such persons to function with varying degrees of independence. Under Section 14 of the National Trust Act, the Local- Level Committee, led by the District Collector, can receive applications for guardianship of persons with autism, cerebral palsy, intellectual disabilities, and multiple disabilities. It also provides for monitoring and protecting their interests and properties. Section 14 of the Mental Healthcare Act, 2017 allows courts to appoint a representative for the welfare of mentally unfit individuals. High Courts, under Article 226 of the Constitution, can also appoint guardians and have recently granted conditional relief through their special writ powers. Guardianship Granted by High Courts One can also approach the High Courts under Arti - cle 226 of the Indian Constitution (writ jurisdiction) for appointment of guardian. Recently, the High Courts in India have been granting conditional reliefs by exer - cising their powers under the special writ jurisdiction. 8.3 Elder Law Evolution of “Living Wills” in India In 2018, the Supreme Court of India ( Common Cause v Union of India ) upheld the right to life and dignity, including the right to refuse treatment and die with dig - nity, through an “Advance Directive” or “Living Will”. On 24 January 2023, the Court updated the guidelines based on an application by the Indian Society of Criti - cal Care Medicine.
Simplified procedures cover medical boards, living will implementation, withdrawal of treatment, and digital health records. Despite legal recognition, implementation has been fragmented due to various factors. Some state gov - ernments have been hesitant to implement the proce - dures without clear guidance. Very few medical boards have been established with Kerala being the first state to put in place a Living Wills Counter in January 2025, followed by a hospital in Mumbai which established a clinic to assist with the preparation of Living Wills in June 2025. Gift of residential property by a senior citizen in favour of a family member during the lifetime of such senior citizen is common in India. Senior citizens in India can cancel registered gift deeds if their children fail to pro - vide adequate care and maintenance, even if these obligations were not explicitly stated in the gift deed. This jurisprudence finds legal backing in the Mainte - nance and Welfare of Parents and Senior Citizens Act, 2007, which protects the rights of senior citizens and ensures their welfare. The legal framework is designed to protect senior citizens from neglect and exploitation by their families even after gifting away their residen - tial properties in favour of the next generation. 9. Planning for Non-Traditional Families 9.1 Children Under prevalent Hindu personal laws in India, there is no differential treatment for children born out of wed - lock, adopted children, surrogate children or posthu - mously conceived children. Such children are regard - ed as Class I heirs of the deceased and therefore are not subjected to any disparity as far as inheritance to the estate of the deceased is concerned. Under the Hindu Adoption Act, 1956, from the date of adoption, the child is under the legal guardianship of the new adopted parent(s) and thus should enjoy all the benefits from those family ties. This also means that this child, therefore, is cut off from all legal ben - efits (eg, property and inheritance) from the family who had given them up for adoption.
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