Summary Of The Guardian & Wards Act 1890
The Act is divided into four chapters.
The first Chapter (sections 1- 4 A) deals with certain preliminary matters, such as title, extend and commencement, savings, definitions and powers to confer jurisdiction on subordinate judicial officers and to transfer proceedings to such officers.
Chapter 2 (sections 5- 19) deals with the appointment and declaration of guardians. A large number of questions have arisen with reference to certain provisions contained in this Chapter, particularly, sections 7, 17 & 19. Section 5 which dealt with guardianship by will or other instrument in the case of European British subjects has been repealed. The power to appoint a guardian in other cases is saved by section 6 now which applies to all persons.
Section 7 is the operative provision in the Chapter, with the power of the Court to appoint the guardian of the person or property or both.
Sections 8-16 mostly deals with procedural or other minor matters.
Section 17 is of great importance. It pertains to the matters to be considered by the courts in appointing a guardian.
Section 18 provides that a collector, if appointed or declared a guardian, is so appointed by the virtue of his office to be the guardian of the person or property or both.
Section 19 prohibits the appointment of a guardian in certain cases. Although negative in form, this section has given rise to a number of problems in interpretation and to the question of the inter relationship between section 17 & section 19.
Sections 20-23 deals with matters of a general character , such as the fiduciary relationship of guardian to his ward, the capacity of minors to act as guardians , the enumeration of guardians and control of the Collector when he is appointed as a Guardian.
Guardian of the person is dealt in sections 24-26, of which the most important is section 25 dealing with the restoration of the custody of the Ward to the Guardian. This is the section most frequently resorted to in practice, and as expected, case law on this section is prolific.
Guardianship of the property is the subject matter of sections 27-37.
With sections 38-42, the Act again reverts to matters of general character, namely, rights of supervisor ship amongst joint guardians, removal of guardian, discharge of a guardian, cessation of authority of the guardian and appointment of a successor to a guardian who is dead, discharged or removed.
These operative provisions of the Act are supplemented by Chapter 4 (sections 43-51), which are primarily concerned with matters in the nature of enforcement, appeal, cost, rules and other topics of miscellaneous or residuary Chapter.
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