Legal Process of Guardianship in Nepal

(This article explains all detail legal process of guardianship in Nepal)

1. Introduction of Guardianship:

Guardianship means a person appointed by the court to take care of an incapacitated, incompetent, or quasi-competent person and assigns a duty to protect such persons’ rights and interests. Guardianship in another word is the legal authority and responsibility granted to an individual to make decisions on behalf of someone who is unable to make decisions for themselves as being minor, unable, incapacity or disability.

According to National Civil Code, 2074 – Guardian means a person or institution appointed or having an obligation to protect the rights and interests of the child in accordance with this Act or the prevailing laws, and this term also includes a curator in the absence of the guardian.

2. Governing Laws for guardianship in Nepal

Muluki Civil Code, 2074, Sec 77
Muluki Civil Procedure Rules, 2075
Act relating to Children, 2074

3. Governing authority for guardianship

District Courts of Nepal

4. Eligibility order to become guardian of a child

A person in the specified priority order becomes the guardian of an incapacitated or partially capable person automatically;

Husband or wife living in a same family
Father or mother
Son, daughter, or widow daughter-in-law living in a joint family
Separated husband or wife
Separated son, daughter or widow daughter-in-law
Grandfather or grandmother
Grandson or grand daughter
Elder or younger brother or elder or younger sister
Grandfather, grandmother on the mother’s parent side, maternal uncle, maternal aunti

5. Other circumstances for a person to become a guardian

As guardianship is granted legally by the court, but in emergency situation, temporary guardianship can be granted to the person in making urgent decision upon the unavailability of the guardian. Likewise in some legal matters, a professional guardian can also be appointed. Apart from this situation, there are certain conditions where an individual becomes the legal guardian;

S.N	Circumstances	Who can be guardian
1.	In case of existence of multiple eligible guardians in a priority list.	1 member mutually agreed upon by them If no agreement, court appoints the guardian
2.	Person above 10 years and of sound mind	Chosen by himself/herself (Selection by the deed, certified by the court)
3.	In case of a minor whose parents’ marriage ends as per law	Father or mother who maintains him/her
4.	If the 1^st priority person to be a guardian refuses or is incapacitated or doesn’t fulfill the role	Next priority list person (Shall obtain court certification as a guardian)

6. Who/What kind of person cannot become legal guardians?

The following person cannot become guardian;

*S.N*	*Person who cannot become guardian*
1.	Incapacitated or partially capable person
2.	Someone proven to have harmed the incompetent or quasi-competent person’s rights and interests.
3.	Someone who served 3 and above years in prison (though not applicable to priority list persons)
4.	Someone ruled out as a guardian by the court.

7. Required documents for the appointment of legal guardian

Documents required for filing application for the appointment of guardian of an incompetent or semi-competent person are mentioned below;

S.N	Required Documents
1.	Citizenship of the applicant who is to become guardian
2.	Birth registration certificate of the incompetent or semi-competent person who is to remain under the guardianship of the applicant
3.	Details of the applicant including his/her full name, sex, age, address and many more
4.	Relation verification document proving the relation between the applicant and the incompetent and semi-competent person.
5.	Legal document which proves the person as incompetent or semi-competent person
6.	Recommendation letter from the local level or ward office
7.	Deed document about guardianship
8.	Temporary residence recommendation document from the local ward office of the applicant (if application is to be filed apart from the citizenship issuance district)
9.	Application for the appointment of the guardianship
14.	Passport sized photo (2/2 each)
15.	Original citizenship of the applicant and the original birth certificate of the person who is to remain under the guardianship is needed in the court.

8. Process of Obtaining Guardianship legally:

The legal procedure in establishing guardianship involves a court procedure where the court assess the individual’s capacity to make decisions. After the court examines the capability of the to be guardian to ensure that the guardians can act in the best interest of the individual, they are responsible for, then, the court grants permission for the appointment of the guardian.

9. Termination of guardianship:

The person who wishes to terminate the guardianship can file a petition in the district court for termination or as to say modification of the guardianship. The court then, reviews the petition and considering the present situation, as to what would be the best interest of the individual grants permission for termination or objects in doing so.

If the court accepts the petition filed by the guardian stating to step down from guardianship.
If the guardian or the person under guardianship dies.
If the person under guardianship becomes competent.
If the court removes the guardian as per the request of the person under guardianship.

Note: Upon the death of the guardian, the rights, and duties of the guardian cannot be transferred to a successor.

10. In what condition can an organization be the guardian of the incompetent and semi-competent person:

If a child, who is living in an organization, such as a child welfare house, orphanage, child home or children’s organization, registered pursuant to law with the object to have welfare of and protect rights and interests of children, has no other guardian, such an organization shall be considered to be his or her guardian.

11. what condition can an organization be the guardian of the incompetent and semi-competent person:

If a child, who is living in an organization, such as a child welfare house, orphanage, child home or children’s organization, registered pursuant to law with the object to have welfare of and protect rights and interests of children, has no other guardian, such an organization shall be considered to be his or her guardian.

12. Situation where a guardian be appointed by the court:

Curt can appoint a particular person as the guardian, specifying the reasons in following circumstances;

(a) If the concerned ward committee of the concerned local level files a petition in the court for the appointment of guardian in cases where any person declines to be a guardian as per the priority list.

(b) If the stakeholder files a petition in the court for the appointment of guardian.

13. Legal Status of the person under the guardianship

There are certain rights which a person under guardianship is legally bound to acquire and the guardian shall also consider each of the legal rights and shall act accordingly. Some considerable rights which dignifies as legal status of the individual are listed below;

Responsibility on guardianship — Responsibility on guardian

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