INDIA Law and Practice Contributed by: Rishabh Shroff, Kunal Savani and Chirag Shah, Cyril Amarchand Mangaldas
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 mul - tiple disabilities, and monitor and protect their inter - ests and properties. Section 14 of the Mental Healthcare Act, 2017 allows courts to appoint a representative for the welfare of mentally unfit individuals. 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 a guardian. Recently, High Courts have been granting conditional reliefs by exercising their special writ powers. 8.3 Planning for Incapacity Unlike the systems of Lasting Powers of Attorney (LPAs) available in other common law jurisdictions which are designed to remain operative during periods of incapacity, India does not provide for any such con - tinuation of authority. Once mental incapacity arises, the power of attorney ceases to have effect. For indi - viduals residing overseas who rely on an Indian power of attorney, this presents a significant practical risk, as any subsequent transactions may be rendered invalid. Notwithstanding the above, certain statutory mecha - nisms exist that may be utilised for incapacity plan - ning. The Mental Healthcare Act, 2017 (MHCA) introduced the concept of an “advance directive”, whereby an individual may specify, in writing, the manner in which they wish to be cared for and treated for a mental ill - ness and may appoint a “nominated representative” to make decisions on their behalf during periods of incapacity. The advance directive must be made in the prescribed form and registered with the relevant Mental Health Review Board. While this mechanism is limited to decisions relating to mental healthcare and treatment, it represents one of the few statutory instru - ments in India that expressly contemplates decision- making during incapacity.
Guardianship under the National Trust Act, 1999 and the MHCA (as noted above) can also be sought. Limited Guardianship Under the Rights of Persons With Disabilities Act, 2016 The Rights of Persons with Disabilities Act, 2016 pro - vides for “limited guardianship” under Section 14, whereby a district court may appoint a suitable person to take jointly supported decisions with, or decisions on behalf of, a person with a disability, in respect of specific matters and for a limited duration. 8.4 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 die with dignity through an “Advance Directive” or “Living Will”. On 24 January 2023, the Court updated the guidelines, simplifying procedures covering medical boards, Liv - ing Will implementation, withdrawal of treatment and digital health records. Despite legal recognition, implementation has been fragmented. 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 for Living Wills in June 2025. Gift of residential property by a senior citizen in favour of a family member during their lifetime is common in India. Senior citizens can cancel registered gift deeds if their children fail to provide adequate care and main - tenance, even absent explicit obligations in the gift deed. This is supported by the Maintenance and Wel - fare of Parents and Senior Citizens Act, 2007, which protects senior citizens from neglect and exploitation after gifting away their residential properties. 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
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