Introduction of Section 38
Section 38 of the Guardians and Wards Act, 1890, addresses the situation where two or more individuals are appointed as joint guardians of a minor. This provision establishes the legal principle that, upon the death of one of the joint guardians, the remaining guardians will continue in their role until the court makes a further appointment. It ensures that there is no disruption in the guardianship of the minor, providing continuity in the guardian’s duties and responsibilities.
Text of Section 38:
On the death of one of two or more joint guardians, the guardianship continues to the survivor or survivors until a further appointment is made by the Court.
Simplified Explanation:
Overview: When a court appoints multiple joint guardians for a minor, Section 38 ensures that if one of the joint guardians dies, the remaining guardians automatically continue to hold the guardianship duties. The guardianship does not end or require reappointment by the court unless a further appointment is made. This continuity helps maintain stability and consistency in the minor’s care and management of their property.
Key Points of Section 38:
- Joint Guardianship: The section applies when two or more individuals are appointed as joint guardians of a minor.
- Survivorship: If one of the joint guardians dies, the surviving guardians continue to exercise their duties and responsibilities as guardians.
- Court Appointment: The guardianship remains with the surviving guardians until the court appoints a new guardian or modifies the guardianship arrangement.
- No Immediate Disruption: This provision prevents the need for an immediate court order following the death of a joint guardian, ensuring there is no gap in the guardianship.
Purpose and Scope: The purpose of Section 38 is to provide legal clarity on what happens in the event of the death of one of the joint guardians. It aims to ensure that the guardianship continues smoothly without interruption, avoiding the potential confusion or void in legal guardianship status. This section also outlines that the surviving guardians will retain the authority until the court intervenes.
Practical Impact: In practice, this section ensures that the surviving joint guardians can continue to make decisions on behalf of the ward without needing immediate court intervention. The stability provided by this provision prevents the minor from being left in a legal limbo, where no one holds formal guardianship rights until the court makes a new appointment.
Examples:
- Guardian Death in Joint Guardianship: A minor has two guardians, and one of them passes away. The surviving guardian continues to fulfill the responsibilities of guardianship without needing a court order until a new appointment is made by the court.
- Change in Guardianship: A minor’s guardianship is shared between two individuals, and one dies. The surviving guardian manages the ward’s affairs until the court appoints a new guardian or makes further arrangements.
- Multiple Joint Guardians: If there are three joint guardians and one passes away, the remaining two continue as joint guardians until the court makes a new appointment, ensuring that the minor’s interests are still being represented.
Conclusion:
Section 38 ensures that the death of one of the joint guardians does not disrupt the guardianship arrangement. It provides continuity by allowing the surviving guardian(s) to continue in their role until the court makes a new appointment. This helps maintain the ward’s well-being and ensures that there is no lapse in guardianship duties, providing stability and reducing the need for immediate legal intervention.
