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Understanding Guardianship Laws in Nepal: Types, Legal Framework, and Process

Guardianship in Nepal refers to the legal responsibility granted to an individual to care for and make decisions on behalf of a minor child or a person who is unable to manage their personal or financial affairs due to physical or mental incapacity. The concept is rooted in the need to protect the rights, welfare, and best interests of vulnerable individuals. In Nepal, guardianship is primarily governed by the Muluki Civil Code, 2074 (2017), which outlines various provisions related to the appointment, role, and responsibilities of guardians.

There are different types of guardianship recognized in Nepal, including natural guardianship (usually parents), court-appointed guardianship, and testamentary guardianship (appointed through a will). In cases where both parents are absent, deceased, or deemed unfit, the court may assign a suitable guardian to ensure the child’s safety and well-being. The guardian may also be responsible for managing the ward’s property and financial affairs.

The appointment of a guardian is subject to legal procedures to ensure the selected person is fit and committed to acting in the ward’s best interest. Guardianship plays a vital role in Nepal’s legal system, especially in protecting children, orphans, persons with disabilities, and other vulnerable populations.

Types of Guardianship in Nepal

Guardianship in Nepal is categorized into three main types based on the nature of appointment and the relationship between the guardian and the ward. These include Natural Guardianship, Testamentary Guardianship, and Court-Appointed Guardianship, as outlined under the Muluki Civil Code, 2074 (2017). Each type serves to protect the personal and property rights of minors and individuals who are unable to manage their affairs.

1. Natural Guardianship

Natural guardianship refers to the automatic legal authority granted to biological or adoptive parents over their children. In the context of Nepal, the father is typically recognized as the primary natural guardian of a child. He is responsible for the child's upbringing, including decisions related to education, health, residence, and financial matters. However, if the father is deceased, absent, or legally declared unfit due to mental or physical incapacity or misconduct, the mother assumes the role of guardian. The law ensures that the mother’s guardianship is recognized equally in such circumstances. In cases of legally adopted children, the adoptive parents are granted full guardianship rights and responsibilities, just like biological parents. Natural guardianship does not require court intervention unless disputes arise between parties over custody or guardianship.

2. Testamentary Guardianship

Testamentary guardianship arises when a parent appoints a guardian through a will or legal declaration to take care of their child in the event of their death or incapacity. This type of guardianship allows parents to have a say in who should care for their children if they are no longer able to do so. The appointed guardian may be entrusted with the personal care of the child, management of their property, or both, depending on the instructions in the legal document. However, even though it is based on the parents’ wishes, the appointment must be approved by the court to ensure the selected individual is capable and willing to act in the child’s best interest. Testamentary guardianship provides continuity in care and avoids potential legal battles after a parent’s death.

3. Court-Appointed Guardianship

Court-appointed guardianship occurs when no natural or testamentary guardian is available or suitable to care for a minor or a person with physical or mental incapacity. In such cases, the court intervenes and appoints a responsible individual to act as the guardian. This form of guardianship is often necessary in situations involving orphans, abandoned children, individuals with disabilities, or when existing guardians are found to be negligent or abusive. The court thoroughly examines the proposed guardian’s background, character, capacity, and intentions before granting the role. Once appointed, the guardian must manage the ward’s personal care and property in their best interest. The court may regularly monitor the guardian’s actions and has the authority to revoke guardianship if misuse, negligence, or conflict of interest is found. Court-appointed guardianship is essential for ensuring legal protection and support for the most vulnerable members of society.

Guardianship in Nepal is governed primarily by the Muluki Civil Code, 2074 (2017), specifically under Sections 188 to 202. These provisions lay down the legal basis for appointing, defining, and regulating the roles and responsibilities of guardians for minors or individuals who are mentally or physically incapacitated. The law ensures that the rights, welfare, and property of such individuals are protected by a responsible and legally recognized guardian.

A. Eligibility to Become a Guardian in Nepal

To be eligible for guardianship in Nepal, as per the Muluki Civil Code, 2074, an individual must meet specific legal, physical, and moral standards. The guardian must be at least 18 years old, mentally sound, and physically fit to handle the responsibilities of care and decision-making for the ward. Additionally, the person must have good moral character and no criminal background. Those with a conflict of interest, such as someone who could benefit unfairly from the ward’s property, are not eligible. The court assesses whether the proposed guardian is suitable and trustworthy, ensuring that only responsible individuals who can act in the best interest of the ward are appointed. This system protects vulnerable individuals from abuse, neglect, or exploitation.

B. Duties and Responsibilities of a Guardian

In Nepal, the duties and responsibilities of a guardian are clearly outlined under the Muluki Civil Code, 2074 (2017). A guardian is legally obligated to act in the best interest of the ward, who may be a minor or a person unable to manage their own personal or financial affairs due to mental or physical incapacity. These responsibilities fall broadly into two main categories: personal care and property management.

1. Personal Care and Welfare

A guardian must ensure the overall well-being, safety, and development of the ward. This includes providing basic necessities such as food, shelter, clothing, and a safe living environment. One of the primary responsibilities is to ensure access to quality education appropriate to the ward’s needs and capabilities. The guardian must also provide for healthcare, including regular checkups, medical treatments, vaccinations, and emergency care when necessary.

In addition to physical care, the guardian has a duty to offer emotional and psychological support. This involves nurturing the ward, protecting them from abuse or neglect, and helping them grow into a healthy and responsible individual. The guardian must guide the ward’s behavior, help with moral and social development, and make daily decisions that align with the child’s or dependent’s best interests.

2. Property and Financial Management

When the ward owns property or has inherited assets, the guardian may be assigned responsibility for managing those resources. This is a serious responsibility that must be carried out with honesty, transparency, and accountability. The guardian is expected to protect the ward’s property, ensure it is used properly for the ward’s benefit, and prevent misuse or loss. Any income, rent, or benefits generated from the ward’s assets must be used for the ward’s care and not for the guardian’s personal gain.

The guardian is not allowed to sell, lease, mortgage, or transfer the ward’s property without prior approval from the court. This is a critical safeguard to prevent exploitation or illegal transfers. In some cases, the court may require the guardian to submit a periodic report or financial statement to ensure the assets are being managed properly.

The guardian must always act in the best interest of the ward, avoiding any action that could cause harm, loss, or emotional distress. The law requires the guardian to act with good faith, meaning their decisions must prioritize the welfare of the ward over personal interests. If a guardian fails in their duty, such as through neglect, abuse, or mismanagement—they may be legally removed and held accountable.

4. Supervision by the Court

Especially in cases involving property or complex family matters, the guardian operates under the supervision of the District Court. Major decisions often require court permission, and the court has the authority to monitor and review the guardian’s actions. This judicial oversight ensures that the guardian’s role is exercised properly and that the ward’s rights are fully protected.

1. No Absolute Power

A guardian’s authority is limited and conditional. Unlike parental rights, which are often more flexible, guardianship, especially when court-appointed, is closely monitored. The guardian is required to act as a caretaker and manager, not as an owner of the ward’s person or property. The guardian cannot make arbitrary decisions or use their position for personal benefit.

2. Restriction on Property Transactions

One of the most critical limitations is the guardian’s lack of authority to conduct high-value or long-term property transactions without court approval. For example, if the guardian wants to sell, lease, mortgage, or transfer ownership of the ward’s land, house, or inherited property, they must first seek permission from the District Court. This is to prevent financial exploitation and safeguard the ward’s future economic stability. Unauthorized transactions can be declared void and may result in legal penalties against the guardian.

3. Prohibition of Personal Gain

Guardians are legally prohibited from using the ward’s assets or resources for personal use. Any financial benefit derived from the ward’s property must be used solely for the ward’s welfare, such as education, medical care, food, clothing, and shelter. If a guardian misuses funds or lives off the ward’s property for their own comfort, it is considered a violation of legal duty and may result in punishment.

4. Accountability and Oversight

Guardians may be required to report periodically to the court, especially in cases involving property or large responsibilities. The court may ask for financial records, expense breakdowns, or status reports to ensure transparency. This form of judicial supervision acts as a control mechanism to keep guardians accountable for their actions.

If a guardian is found to be negligent, abusive, or acting in bad faith, the court has the full authority to investigate and remove them from their position. Grounds for removal may include:

  • Mismanagement of property
  • Failure to provide proper care
  • Emotional or physical abuse
  • Exploiting the ward’s vulnerability

Process of Guardianship in Nepal

In Nepal, obtaining legal guardianship involves a two-day court procedure designed to ensure that the appointed guardian is capable, trustworthy, and committed to acting in the best interest of the ward (a minor or person needing care). Below is a step-by-step explanation based on the flowchart you provided:

1st Day – Filing and Registration

Step 1: Preparation of Application

The process begins with the preparation of a formal application by the person who wishes to become a guardian. This application must clearly state the reasons for seeking guardianship and include all necessary personal and legal details.

Step 2: Filing the Application in Court

The applicant must file the application in the concerned District Court, expressing their intention to be legally appointed as a guardian.

Step 3: Inquiry and Document Review by Court

After receiving the application, the court will review all the submitted documents and evidence. This includes identity proofs, any legal documents related to the ward (e.g., birth certificate, disability documents, etc.), and other supporting records.

Step 4: Registration of the Application

If the court finds the application and documents to be reasonable and legally valid, it proceeds with registering the application.

Step 5: Scheduling Next Day's Hearing

Once registered, the court provides a date, usually the next day, for the final hearing and decision-making process.

2nd Day – Court Appearance and Decision

Step 6: Presence in Court

On the second day, both the applicant and the person who is to remain under guardianship (if capable of appearing) must be physically present in court.

Step 7: Presentation Before the Judge

Both parties are presented before the Judge, who personally examines the submitted documents and may ask the applicant and ward a few questions to assess the necessity and appropriateness of guardianship.

Step 8: Judicial Decision on Guardianship

If the Judge finds the application reasonable and believes that the applicant can genuinely act in the ward’s best interest, the court grants permission for guardianship.

Step 9: Signature Before Judge

Once permission is granted, the applicant is required to sign the official records in the presence of the Judge as a confirmation of their responsibility and commitment.

Step 10: Issuance of Guardianship Certificate

Finally, the court issues a Guardianship Certificate, which serves as a legal document proving the applicant's authority and duty as the legal guardian.

Guardianship in Nepal plays a vital role in ensuring the protection and care of minors and individuals unable to manage their affairs due to physical or mental incapacity. Governed by the Muluki Civil Code, 2074, it provides a legal structure for appointing qualified and trustworthy guardians. The law recognizes natural, testamentary, and court-appointed guardianship, each ensuring the ward's personal welfare and property protection. Strict eligibility criteria, well-defined responsibilities, legal limitations, and a supervised two-day court process ensure that guardianship serves the ward’s best interest. Ultimately, guardianship reinforces social justice by safeguarding the rights of Nepal’s most vulnerable populations.

Disclaimer:
This article is intended solely for informational purposes and should not be interpreted as legal advice, advertisement, solicitation, or personal communication from the firm or its members. Neither the firm nor its members assume any responsibility for actions taken based on the information contained herein.