INDIA Law and Practice Contributed by: Rishabh Shroff, Kunal Savani and Chirag Shah, Cyril Amarchand Mangaldas
8. Planning for Minors, Adults with Disabilities and Elders 8.1 Special Planning Mechanisms In India, a private trust is a commonly used struc - ture for creating a secure future for a special-needs dependent, allowing parents to manage the child’s affairs as they wish. It ensures that the legacy left for the special-needs child is managed to provide for the lifetime care and needs of special-needs children or adults with disabilities in the absence of the par - ents. The trustee holds the trust assets in a fiduciary capacity for the benefit of the beneficiaries, thereby addressing concerns of the parents when they are no more. There is no restriction in the Trusts Act as to who can set up a family private trust. Parents, grandparents or legal guardians can do so for their special-needs child’s future, and in most cases, a corporate trustee service provider is used. 8.2 Appointment of a Guardian Under Indian law, guardians can be appointed under different laws. • The Guardians and Wards Act, 1890. • The Rights of Persons with Disabilities Act, 2016. • The National Trust Act, 1999. The Guardians and Wards Act, 1890 is a secular act applicable to all religions, and authorises the District Court to appoint a guardian for a minor themselves, their property, or both. 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 reaching 18 years of age, they may not always be capable of managing their own lives or tak - ing legal decisions. However, in some cases, there may be a need for only limited guardianship because of enabling mechanisms which allow such persons to function with varying degrees of independence. • The Mental Healthcare Act, 2017. The Guardians and Wards Act, 1890
• for or on taking up employment in India; • for carrying on a business or vocation in India; or • for any other purpose in such circumstances as would indicate his/her intention to stay in India for an uncertain period, is regarded as a resident under FEMA. If an individual does not meet the residency parame - ters above, he/she is considered an NRI under FEMA. An NRI faces certain restrictions in terms of acquiring real estate in India as well as acquiring certain other asset classes such as equity shares. For instance, an individual who is an NRI under FEMA cannot purchase or acquire agricultural land in India. Tax residency See 1.1 Tax Regimes for details. Citizenship The primary provisions governing citizenship in India are contained in the Citizenship Act, 1955 (“Citizen - ship Act”) which provides for various methods of acquisition of Indian citizenship being: • citizenship by birth; • citizenship by descent; • citizenship by registration; • citizenship by naturalisation; and • citizenship by incorporation of a territory. Moreover, under the Citizenship Act, those who are a citizen of another country, but were a citizen of India at the time of, or were eligible to become a citizen at any time after, the commencement of the Constitution, can become an overseas citizen of India (OCI) by obtaining an OCI Card as per the prevalent guidelines contained in the Citizenship Act and underlying rules. 7.2 Expeditious Citizenship There is no applicable information in this jurisdiction regarding expeditious citizenship.
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