Termination of Guardianship, Procedure and Appeal

In one line

A guardian may be removed for cause, discharged on his own application or lose his powers by law, the court may regulate his conduct and punish disobedience, and an appeal lies to the High Court against ten kinds of order.

Section 38: joint guardians

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.

So the office does not lapse, and the survivors continue to hold it. The section is the counterpart of section 15(1), under which the court may appoint joint guardians where the minor's personal law admits of them.

Section 39: removal

The Court may, on the application of any person interested, or of its own motion, remove a guardian appointed or declared by the Court, or a guardian appointed by will or other instrument, for any of the following causes:

(a) for abuse of his trust; (b) for continued failure to perform the duties of his trust; (c) for incapacity to perform the duties of his trust; (d) for ill-treatment, or neglect to take proper care, of his ward; (e) for contumacious disregard of any provision of the Act or of any order of the Court; (f) for conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian of his ward; (g) for having an interest adverse to the faithful performance of his duties; (h) for ceasing to reside within the local limits of the jurisdiction of the Court; (i) in the case of a guardian of the property, for bankruptcy or insolvency; and (j) by reason of the guardianship ceasing, or being liable to cease, under the law to which the minor is subject.

The proviso protects the testamentary guardian in two of those cases. A guardian appointed by will or other instrument, whether declared under the Act or not, shall not be removed:

• for the cause in clause (g), an adverse interest, unless the adverse interest accrued after the death of the person who appointed him, or it is shown that that person made and maintained the appointment in ignorance of the adverse interest; and
• for the cause in clause (h), ceasing to reside within the jurisdiction, unless he has taken up such a residence as renders it impracticable, in the Court's opinion, for him to discharge the functions of guardian.

How to answer on removal

Ten grounds, and they group into four kinds. Misconduct, in clauses (a), (d) and (e). Inability, in (b), (c) and (i). Unsuitability, in (f) and (g). And external causes, in (h) and (j).