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Power and liabilities of legal guardian in Bangladesh
A legal guardian is a person who gets authority of person or of property of a ward who can be a minor, insane or any other person, may be appointed by the Court on its own motion or by will or any instrument. In Bangladesh the "Guardians and Wards Act, 1890" is the leading statute which basically controls all the matters relating to guardianship. However, the legal guardianship is not only confined within the Guardians and Wards Act, 1890, we may find some provisions relating to guardianship in certain legislations. Anywayin accordance with the provisions of all these statutes, a legal guardian of a ward is provided with several powers and liabilities
What are the powers and liabilities of a legal guardian under the central legislation of guardianship the Guardians and Wards Act, 1890?
In line with the Act considering the welfare of a minor who is a citizen of Bangladesh the Court can make an order appointing or declaring a guardian, shall be a citizen of Bangladesh,of his person or property or both. A guardian stands in a fiduciary relation to his wardsand he must not secure any interest out of his obligations.The guardian with the custody of a minor is bound to look after the subjects that is required for the ward as per the law like health, education etc. Generally, a guardian of the person cannot extract the minor from the limits of its jurisdiction without the leave of the Court by which he was appointed except for he is the Collector or is a guardian appointed by will or any instrument.
If he is a guardian of property of a minor,then he is obligated to deal with the property cautiously as if it is his property and he can take all actions which are legitimate and proper for the realization, protection and benefit of the property. If the guardian of the property of a ward is appointed or declared by the Court then he shall not without the permission of the Court mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immoveable property of the minor or lease for a term exceeding five years or any term extending more than one year beyond the date on which the ward will cease to be a minor. However, he can apply by petition to the Court on any present question respecting the management or administration of the property.
On the other hand, if the guardian of the property of a ward has been appointed by will or any instrument then his power to mortgage or charge, or transfer by sale, gift, exchange or otherwise of the immovable property is subject to nay restriction which may be imposed by the instrument or specified in the order in a manner permitted by the Act.
Considering his personal interests while executing his duties, if the Court thinks fit, the guardian will be entitled to such allowance but when the guardian is a Government officer, such expenses shall be paid out of the property of the ward to the Government.
Moreover, where the guardian is appointed or declared by the Court, under section 34 of the Act he shall be obliged, if so required by the Court,
I. give a bond, with or without sureties to the Judge of the Court, engaging duly to account for what he may receive in respect of the property;
II. a statement of the immoveable property of the minor, of the money or any moveable property, within 6 months from the date of his appointment, on behalf of the ward up to the date of delivering the statement and of debts due on that date to or from the ward;
III. exhibit his accounts in the Court in such time and form as the Court directs time to time;
IV. if there is any balance due from him on his accounts or so much thereof as the Court directs that pay into the Court as the Court directs at such time;
V. apply for the maintenance, education and advancement of the ward and the dependents on him and for the celebration of the ceremonies to which the ward or the dependents may be a party.
The Children Act 2013
Scrutinizing the Children Act, 2013 it can be observed that some specified powers has been offered to a legal guardian while the parents of the child is absent and he also may have several liabilities.
According to the Children Act, 2013 if any child is arrested by police officer then in absence of parents the legal guardian will be notified. Where in any trial proceeding the child's participation is required, with consent of the child a legal guardian can appear on behalf of him/her. Even if the minor is accused of any crime, bailable or non-bailable, the Court can make order to keep the child under the supervision of the legal guardian in absence of parents; however, he will be liable for all sorts of behavior of the child for not more than 3 years and also will be liable to provide bond with or without surety. In point of fact, where the child is convicted the Court can make order for compensation where the legal guardian will be liable to pay if he is financially affluent or if due to his negligence on taking care of the child the offence was committed.
Now under the Children Act, 2013 in case that an initiative has taken for alternative care and re-integration with parents is prioritized while determining the mode and nature of the alternative care but if it was not possible to re-integrate with parents then it can be done with legal guardian.
Penal Code, 1860
The words "lawful guardian" has been explained under section 361 of the Penal Code which include any person lawfully entrusted with the care or custody of such minor or other person. Under the Code, section 89, a particularized powerand authority have been conferred upon the person having lawful charge of a person under 12 years of age or of unsound mind. If the legal authorized person in good faith for the benefit of the child or the insane person does any work that would not amount to an offence by the reason of any harm but it shall not extend to intentional causing of or attempting to cause death, to do anything which is known to be likely to cause death, voluntary causing of or attempt to cause grievous hurt and abetment of any offence.
The Succession Act, 1925
There is a power which has been liable to the legal guardian as stated in section 244 of the Succession Act, 1925 in case the minor is a sole executor or sole residuary legatee, the letters of administration and the will annexed will be allowed to the legal guardian until the ward has reached to his majority
Jobaira Nasrin Khan is a student at School of Law, BRAC University