Closest relative acting as a guardian for an incapacitated individual entitled to withdraw from latter’s bank for necessary expenses: Delhi High Court
In the case revolving around the maintenance of an incapacitated relative, the Delhi High Court concluded that the person maintaining the incapacitated individual shall be directed to withdraw money from the latter’s bank account to cover for the necessary medical expenses; this was decided before the bench of Prateek Jalan J. in the matter of Bhim Singh v AGM, State Bank of India [W.P.(C) 354/2021] The case of the petitioner is that his nephew has been rendered incapacitated and bedridden as he has been suffering from acute ischemic strokes since 2018. According to the petitioner, his nephew’s health worsened in November, 2020, for which he had to be hospitalized. He further submits that an amount of ₹30,000 per month would be required so as to meet daily and medical expenditure, including doctors’ fees, medicines, food, therapist, nurse etc. Although the nephew is married and has two children, it is stated that he and his wife had mutually decided to part ways on account of marital discord. A settlement dated 06.02.2020 was entered into by them which has, however, not been enforced due to the ailing health. The petitioner, being the paternal uncle of, states that he has been taking care of his nephew and has been acting as his guardian, in addition to maintaining his own family, but is not in a position to financially sustain his nephew indefinitely, and meet his medical expenditure as well. It was contended before the court that Under Section 14 of the 1999 Act, a “relative” of a person with a disability may make an application for the appointment of a guardian to the local level committees constituted under the said Act. Regulation 12 of the National Trust Regulations, 2001 inter alia provides for any member of the family to be appointed as the guardian.  The court referred to the judgment of Vandana Tyagi and Anr. vs. Government of National Capital Territory of Delhi (GNCTD) and Ors. [W.P.(C) 11003/2019], decided on 07.01.2020] where the Court was moved by the daughters of a comatose lady, seeking access to the Public Provident Fund account opened by their deceased father. A medical board reported that the mother did not fall within the ambit of the Mental Healthcare Act, although the respondent-bank, in that case, opposed the grant of relief, the Court came to the conclusion that the petitioners were not required to obtain a guardianship certificate, as a comatose person was not covered by either of the aforesaid Acts.
IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 08th April 2021 W.P.(C) 354 2021 & CM APPL. 915 2021 BHIM SINGH Through: Mr. Dhruv Dwivedi Advocate Petitioner AGM STATE BANK OF INDIA & ANR. Respondents Through: Mr. Rajiv Kapur and Mr.Akshit Kapur Advocates for R 1 and R 2. Mr. Ramesh Singh Senior Advocate Amicus Curiae with Ms. Tara Narula Advocate. HON’BLE MR. JUSTICE PRATEEK JALAN JUDGMENT PRATEEK JALAN J. The proceedings in the matter have been conducted through hybrid modeto release an amount of ₹30 000 per month to him from the bank account of his incapacitated nephew Mr. Ajit Kumar Singh354 2021 ischemic strokes since 2018. According to the petitioner AKS’s health worsened in November 2020 for which he had to be hospitalized. A discharge report of the Department of Neurology of the All India Institute of Medical Sciences New Delhi dated 07.11.2020 has been placed on recordin this regard. He further submits that an amount of ₹30 000 per month would be required so as to meet AKS’s daily and medical expenditure including doctors’ fees medicines food therapist nurse etc. Although AKS is married and has two children it is stated that he and his wife had mutually decided to part ways on account of marital discord. A settlement dated 06.02.2020 was entered into by them which has however not been enforced due to the ailing health of AKS. The petitioner being the paternal uncle of AKS states that he has been taking care of his nephew and has been acting as his guardian in addition to maintaining his own family but is not in a position to financially sustain his nephew indefinitely and meet his medical expenditure as well. The petitioner claims to have visited the Bank and made a request for the withdrawal of the said amount from the bank account of AKS to meet his medical expenses. However the request was denied by the Bank on the ground that there was no policy which allowed for such withdrawals even by family members in cases of medical emergencies and that it can only be done under the orders of a competent court. The petitioner thereafter addressed a letter dated W.P.(C) 354 2021 09.12.2020 reiterating the above request. However the letter has not elicited a response. The present writ petition has been filed in the above circumstances in which the petitioner has sought the following relief: “a) Issue a writ in nature of Mandamus directing the Respondents to release a fixed monthly amount of Rs.30 000 from the saving account no. 35865481566 of Sh. Ajit Kumar Singh to the Petitioner for meeting the his medical expenditure till Sh. Ajit Kumar Sing regains his health. Pass any other orders that this Hon‟ble Court deems just fit and necessary” b) Notice was issued in this petition on 11.01.2021 including to the wife and children of AKS who were arrayed as respondent nos. 3 to 5 in the petition. By the said order this Court also requested Mr. Ramesh Singh then learned Standing Counsel for the Government of NCT of Delhi to assist it as Amicus Curiae and also take instructions as to whether the GNCTD can carry out any exercise of verification of the status of the petitioner and the averments made in the petition. Pursuant to the aforesaid order Mr. Singh appeared on 25.01.2021 and drew my attention to Clause 5.7 of the Master Circular on Maintenance of Deposit Accounts UCB dated 01.07.2009 issued by the Reserve Bank of Indiathe relevant portions of which read as follows: Old Sick Incapacitated Customers W.P.(C) 354 2021 5.7.1 In order to facilitate old sick incapacitated bank customers to operate their bank accounts procedure as laid down in paragraph 5.6.2 below may be followed. The cases of sick old incapacitated account holders fall into the following categories: i. an account holder who is too ill to sign a cheque cannot be physically present in the bank to withdraw money from his bank account but can put his her thumb impression on the cheque withdrawal form ii. an account holder who is not only unable to be physically present in the bank but is also not even able to put his her thumb impression on the cheque withdrawal form due to certain physical defect incapacity. 5.7.2 The banks may follow the procedure as under: thumb or i) Wherever sick old incapacitated account holder is obtained it should be identified by two independent witnesses known to the bank one of whom should be a responsible bank impression of ii) Where the customer cannot even put his her thumb impression and also would not be able to be physically cheque withdrawal form which should be identified by two independent witnesses one of whom should be a responsible bank official. the bank a mark obtained on 5.7.3 In such cases the customer may be asked to indicate to the bank as to who would withdraw the amount from the bank on the basis of cheque withdrawal form as obtained above and that person should be identified by two independent witnesses. The person who would be actually drawing the money from the bank should be asked to furnish his signature to the bank.” Consequently by the order dated 25.01.2021 this Court directed as follows: W.P.(C) 354 2021 “2. In view of the above Mr. Singh submits that a certificate of a doctor would be required to determine whether an incapacitated person falls within any of the categories constituted by Clause 5.7 before any other person can be permitted to operate his her bank account. 3. Mr. Dhruv Dwivedi learned counsel for the petitioner states that the petitioner‟s nephew namely Mr. Ajit Kumar Singh has been undergoing treatment at the All India Institute of Medical Sciences New Delhi. AIIMS New Delhi is therefore requested to examine Mr. Ajit Kumar Singh and submit a report as to whether he falls within the category mentioned in 5.7.1(i) or 5.7.1(ii) of the aforesaid Master Circular. the office of this order before 4. Learned counsel for the petitioner will produce a copy the Medical Superintendent AIIMS New Delhi who is requested to nominate a suitable doctor or team of doctors for this purpose. The aforesaid be done within one week. 5. A copy of the report will be placed before this Court by the Medical Superintendent of AIIMS New Delhi or an The Medical Superintendent will also ensure that a copy of the report is served upon Mr. Ramesh Singh learned Standing Counsel Government of NCT of Delhi and the learned counsel for the parties.” Pursuant to the aforesaid order AKS was taken to AIIMS on 30.01.2021 and 02.02.2021 for a medical examination. AKS was examined by a five doctor Medical Board of AIIMS comprising of Dr. Achal Kumar Srivastava Professor Deptt. of Neurology CNC AIIMS Dr. Awadh Kishor Pandit Assistant Prof. Deptt. of Neurology CNC AIIMS Dr. Divya M. R Assistant Prof. Deptt. of Neurology CNC AIIMS Dr. Khalid Mehmood Duty Officer CNC AIIMS Dr. Paavan Gopathoti W.P.(C) 354 2021 Duty Officer CNC AIIMS. Vide its report dated 03.03.2021 the Medical Board opined as follows: “The patient 45 years male follow up case of Major Neurocognitive disorderdue to recurrent stroke was examined in detail. Opinion: The medical Board was of unanimous opinion that the above patient falls within the category of 5.7.1 ii) of the Master Circular on maintenance of Deposit Accounts UCBs dated: 01 07 2021 issued by RBI.” Although the Medical Board has opined that AKS falls within the category of Clause 5.7.1(ii) of the Master Circular dated 01.07.2009 it was submitted by Mr. Dwivedi that he is virtually in a comatose state and will not even be able to indicate the person who would be entitled to operate his bank account in terms of Clause 5.7.3 of the Master Circular. As recorded in the order dated 15.03.2021 Mr. Ramesh Singh learned Amicus Curiae also had a telephonic conversation with the treating physician of AKS at AIIMS viz. Dr. Achal Kumar Srivastava Professor Department of Neurology CNC AIIMS who was also the Chairperson of the Medical Board constituted pursuant to the order dated 25.01.2021. Dr. Srivastava clarified to Mr. Singh that AKS is indeed in a comatose state. In these circumstances reliance was placed on the judgment of a coordinate bench in Vandana Tyagi and Anr. vs. Government of National Capital Territory of Delhi and Ors. 11003 2019 decided on 07.01.2020] which lays down guidelines that W.P.(C) 354 2021 may be used to deal with situations such as the present one where a person is unable to discharge his her functions with respect to his her In Vandana Tyagi the Court was moved by the daughters of a comatose lady seeking access to the Public Provident Fund account opened by their deceased father. A medical board reported that the mother did not fall within the ambit of the Mental Healthcare Act 2017 or the National Trust for Welfare of Persons with Autism Cerebral Palsy Mental Retardation and Multiple Disabilities Act 1999354 2021 Tyagi read as follows: “76. Guidelines For ready reference the guidelines as laid down in Vandana i) A person(s) who seek(s) to be appointed as guardians vis à vis an individual who is lying in comatose state shall in their petition to the court disclose the details of all tangible and intangible assets of such an individual. The details as to their location and approximate market value shall also be disclosed. In case of bank accounts stocks shares and debentures and other investments are concerned material particulars will be provided. ii) The court will have the person lying in comatose examined by a duly constituted medical board which would include inter alia a neurologist. iii) The court will also direct the concerned SDM Tehsildar in whose jurisdiction the person lying in comatose is said to be located to carry out an enquiry to establish the veracity of the assertion and to gather material particulars concerning the person(s) who approach the court for being appointed as guardians. The enquiry will inter alia gather information as regards the relationship that the person(s) who wish to be appointed as guardians has have with the person lying in comatose state. Information with regard to the financial condition of persons wanting to be appointed as guardians shall also be collected apart from other aspects which may have a material bearing in their discharging the duties of a guardian. Any conflict of interest concerning the affairs of the person lying in comatose state will be brought to fore in the report generated during the course of the iv) Ordinarily only that person will be appointed as guardian who is a spouse or a progeny of the person lying in comatose. The person seeking appointment as a guardian in his petition to the court will however W.P.(C) 354 2021 disclose the particulars of all legal heirs of the person lying in comatose. In the event the person lying in comatose has neither a spouse nor any children or even any legal heirs or if he she has such persons in his life but stands abandoned by them subject to the permission of the court his next friend who wishes to be appointed as a guardian can approach the court with such a request. In the alternative the Court could direct the Department of Social Welfare GNCTD to appoint a public official such as a Social Welfare Officer or a person holding equivalent rank to act as the guardian of the person lying in comatose state. v) Only that person shall be appointed as a guardian who is otherwise in law competent to act as a guardian. vi) The order directing appointment of a guardian shall specify the assets qua which the guardianship order is passed. The court will be empowered to modify the order and bring within its sweep other assets if required in the interest of the person lying in comatose state. In case liquid funds are not available and there is a requirement to sell the assets of the person lying in comatose state upon the guardian approaching the court necessary directions could be passed in that behalf. vii) The person appointed as a guardian will file every six months a report with the Registrar General of this court. The report shall advert to the transactions undertaken by the guardian in respect of the assets of the person lying in comatose state. Besides this the report shall also indicate the funds if any received by the guardian and their utilization for the purposes of maintaining the person lying in comatose state. viii) The Registrar General of this court will cause a separate register to be maintained which will set out inter alia the details of the proceedings the particulars of the person appointed as a guardian and orders if any W.P.(C) 354 2021 passed after the appointment of the guardian. Measures will also be taken by the Registrar General to preserve the reports filed by the guardian from time to time. ix) It will be open to the court to appoint a guardian either temporarily or for a limited period as may be deemed fit. x) In the event the guardian appointed by the court misuses his her power or misappropriates siphons or misutilizes the assets of the person lying in comatose state or fails to utilize the assets in the best interest of the person lying in comatose state the court would have the power to remove the guardian and appoint another person in his her place. The substituted person could also be a public officer such as a Social Welfare Officer or an officer holding an equivalent rank. xi) The guardian appointed by the court shall intimate his appointment to the public official Social Welfare Officer or officer of an equivalent rank designated by GNCTD. Both the guardian as well as the Registrar General of this court will cause a copy of the order of guardianship being served upon such officer. Such officer shall visit the person lying in comatose at least once in every quarter. The Social Welfare Officer will generate a report of his visit. In case the Social Welfare Officer finds that the guardian appointed by the court is not acting in the best interest of the person lying in comatose state he will move for seeking appropriate directions. the court at the earliest xii) The guardian appointed by the court will ensure that the transactions entered into by him or her comport with the relevant provisions of the law. xiii) In case a relative or a next friend of the person lying in comatose state finds that the guardian is not acting in the best interest of the person lying in comatose state such person will also have the locus to approach W.P.(C) 354 2021 the court for issuance of appropriate directions and or for removal of the guardian. xiv) In case the guardian wishes to move the person lying in comatose state to another state or even to another country for the purposes of securing better medical treatment for the person lying in comatose state for necessary he she would approach permission before undertaking such an exercise.” the court 13. By an order dated 04.03.2021 I had recorded my prima facie opinion that the aforesaid judgment is applicable to the present case and had further directed the SDM Tehsildar Dwarka South West to file a report in terms of paragraph 76(iii) thereof with regard to the petitioner’s request for being appointed as the guardian of AKS. 14. The Enquiry Report dated 08.03.2021 submitted by the Tehsildar Delhi Cantt. broadly supports the factual averments of the petitioner. It confirms that AKS’s parents have passed away and that divorce proceedings between him and his wife have resulted in a settlement which is pending implementation. It is also stated that AKS and his wife have two sons Mr. Mayank Kumar aged 20 years who is stated to be living with his paternal relative in District Ghazipur Uttar Pradesh and Master Shubham Kumar aged 14 years who is stated to be living with his mother. AKS is employed as a Lower Division Clerk in the Ministry of Finance and maintains Saving Account no. 35865481566 with the Bank at its Central Secretariat North Block New Delhi Branch. It is further confirmed that the petitioner herein is taking care of AKS. The financial condition of the petitioner has also been investigated. The statements of neighbours have also been recorded in this connection. W.P.(C) 354 2021 15. By an order dated 15.03.2021 I had also directed Mr. Dwivedi to serve AKS’s wife and children dasti and file an affidavit of service. The affidavit of service dated 24.03.2021 was duly filed and the petition was next taken up on 26.03.2021 when the following order was passed: “1. Pursuant to the order dated 15.03.2021 an affidavit of service has been filed by Mr. Dhruv Dwivedi learned counsel for the petitioner stating that service has been effected upon Ms. Nivedita Singh wife of Sh. Ajit Kumar Singh. Ms. Tara Narula learned counsel assisting Mr. Ramesh Singh learned Amicus Curiae states that she has also personally spoken to Ms. Nivedita Singh on the mobile number referred to in the affidavit of service Mob. No.: 8595398553] and informed her about the pendency of the present petition and the issue raised therein. Ms Narula has also informed Ms. Nivedita Singh about the hearing scheduled for today and provided a link to attend the hearing by video conferencing. 2. According to Enquiry Report dated 08.03.2021 submitted by the Tehsildar Delhi Cantt. Mr. Ajit Kumar Singh also has two sons of whom the younger son Master Shubham Kumar Singh is a minor and lives with his mother Ms. Nivedita Singh. The older son Mr. Mayank Kumar Singh is 20 years old. He has filed an affidavit dated 18.03.2021 stating that he has no objection to the petitioner herein i.e. Mr. Bhim Singh being appointed as the legal guardian of Mr. Ajit Kumar Singh. 3. Ms. Nivedita Singh has not entered appearance either on her behalf or on behalf of her minor son. It must therefore be presumed that she has no objection to the W.P.(C) 354 2021 In the facts and circumstances aforesaid I am of the view that the guidelines adopted by this Court in Vandana Tyagi are applicable to the present case. I am satisfied from the report of the Medical Board and the clarification given by Dr. Srivastava that AKS is in a comatose state and incapable of operating his bank account himself or giving necessary directions for this purpose. The report of the Tehsildar corroborates the information placed on record by the petitioner. 17. As stated hereinabove AKS is married and has two children one of whom is an adult. Despite service of notice his wife has not entered appearance. The material on record shows that the marital relationship of AKS and his wife is in fact the subject matter of legal proceedings wherein they have mutually agreed to a divorce upon certain terms and conditions. His adult son has stated upon affidavit that he has no objection to the petitioner being appointed as legal guardian of AKS. His second son is a minor. In these circumstances I am of the view that neither AKS’s spouse nor children are in a position to undertake his care and in any event have no objection to the petitioner taking on the role of guardian to AKS. The petitioner is a close relative of AKS being his paternal uncle. None of AKS’s other relatives have come forward to act as his guardian. 18. As far as the petitioner’s appointment is concerned Mr. Singh has inter alia drawn my attention to the analogous provisions of the 1999 Act and the rules made thereunder. Under Section 14 of the 1999 Act a “relative” of a person with disability may make an application for the appointment of a guardian to the local level committees constituted under the said Act. Regulation 12 of the National Trust W.P.(C) 354 2021 Regulations 2001 inter alia provides for any member of the family to be appointed as the guardian. Similarly the provisions of the Delhi Rights of Persons with Disabilities Rules 2018 relating to limited guardianship provide for an application to be made inter alia by a blood relative of a person with disabilityto be appointed as their guardian. In the absence of a nominated representative under the 2017 Act Section 14(4) of the said Act also contemplates that a relative of the concerned person may be deemed to be the nominated representative. I am therefore of the view that the petitioner may be appointed as the guardian of AKS for the purpose of withdrawal of a fixed monthly amount from the savings account of AKS subject to the safeguards contained in the guidelines incorporated in Vandana Tyagi. 20. As far as the quantum of monthly withdrawal is concerned the petitioner has sought withdrawal of ₹30 000 per month for the medical and boarding needs of AKS including doctors’ fees medicines food therapist nurse etc. The report of the Tehsildar Delhi Cantt. records inter alia that the monthly salary of AKS is ₹47 962. Having regard to AKS’s income and medical condition as borne out by the materials placed on record I am of the view that the petitioner may be permitted to withdraw ₹20 000 per month from AKS’s account at this stage. 21. Having regard to the aforesaid factors and the guidelines laid down in Vandana Tyagi the petition is disposed of with the following The petitioner who is the paternal uncle of AKS is appointed as his guardian for the purposes of operating his saving account W.P.(C) 354 2021 no. 35865481566 with the State Bank of India at its Central Secretariat North Block New Delhi Branch limited to withdrawal of the sum of ₹20 000 per month from the aforesaid bank account beginning from April 2021. The Bank will file the statement of accounts of the aforesaid account before the learned Registrar General of this Court every three months to monitor the aforesaid aspect. The first such statement will be filed by 15.07.2021 for the period April June The petitioner will also file a statement of accounts before the learned Registrar General every three months stating the items of expenditure with regard to the aforesaid amount of ₹20 000 per month. The first such statement will be filed by 15.07.2021 for the period April June 2021. The statement of accounts will be supported by appropriate documentation including bills receipts etc. The petition will be listed before the learned Registrar General Registrar of this Court every three months for compliance of this aspect. It is open to the learned Registrar General Registrar of this Court to require the petitioner to file further documentation to satisfy him with regard to the expenditure incurred. the event the petitioner misuses his power or misappropriates siphons or misutilizes the assets of AKS or fails to utilize the assets in AKS’s best interests the Court would have the power to remove him as the guardian and appoint another person in his place. W.P.(C) 354 2021 The petitioner shall intimate his appointment to the Director Department of Social Welfare GNCTD. Both the petitioner as well as the learned Registrar General of this Court shall transmit a copy of this order to the Director Department of Social Welfare GNCTD. A representative of the Department of Social Welfare GNCTD shall visit the residence of the petitioner at least once every quarter and make a report regarding the condition of AKS which will be placed before the Director Department of Social Welfare GNCTD. In case the Director finds that the petitioner is not acting in the best interests of AKS he will move the Court at the earliest for seeking appropriate directions. The petitioner will ensure that the transactions entered into by him comport with the relevant provisions of the law. In case any other relative or a next friend of AKS finds that the petitioner is not acting in the best interests of AKS such person will also have the locus to approach the Court for issuance of appropriate directions and or for removal of the petitioner as the In case the petitioner wishes to move AKS to another state or even to another country for the purposes of securing better medical treatment for him he would approach the Court for necessary permission before undertaking such an exercise. In the event the petitioner requires any modification of this order or there are any significant alterations in the condition of AKS including his medical or financial circumstances the W.P.(C) 354 2021 petitioner will make an application to this Court for necessary 22. These directions dispose of the writ petition which will however be listed before the learned Registrar General of this Court on 26.07.2021 for compliance with the directions contained in paragraph 21 above. In the event the learned Registrar General upon examination of the materials placed before him considers it necessary at any stage that the matter be placed before the Court for further orders he may so direct. I wish to place on record my sincere gratitude for the assistance rendered by Mr. Ramesh Singh learned Amicus Curiae and Ms. Tara Narula learned counsel who assisted him in these proceedings. They have gone beyond the call of duty to enable me to arrive at this decision. Mr. Dwivedi who appeared for the petitioner and Mr. Rajiv Kapur and Mr. Akshit Kapur learned counsel for the Bank also approached this matter very constructively and provided valuable assistance and suggestions. Their assistance is also very much 24. The petition and the pending application stand disposed of in terms of these directions. APRIL 08 2021 „HJ‟ PRATEEK JALAN J W.P.(C) 354 2021 