Rule 11, consent through a lawful guardian
In short
Where a Data Fiduciary obtains verifiable consent from an individual identifying herself as the lawful guardian of a person with disability, it must observe due diligence to verify that the guardian is appointed by a court of law, or by a designated authority, or by a local level committee, under the law applicable to guardianship.
01The three appointing bodies
| Appointing body | Source of appointment |
|---|---|
| A court of law | Appointment by court |
| Designated authority | An authority designated under Section 15 of the Rights of Persons with Disabilities Act, 2016 to support persons with disabilities in exercise of their legal capacity |
| Local level committee | A committee constituted under Section 13 of the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 |
The verification is of the appointment, not of the relationship. A person asserting guardianship without an appointment from one of these three sources does not satisfy Rule 11.
02Who the rule covers
Rule 11(2)(d) defines a person with disability for this purpose in two limbs, and both carry the same qualifying condition: that the individual, despite being provided adequate and appropriate support, is unable to take legally binding decisions.
- An individual with a long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders her full and effective participation in society equally with others.
- An individual suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of two or more of them, including severe multiple disability.
The law applicable to guardianship follows the same split: the Rights of Persons with Disabilities Act, 2016 and its rules for the first limb, and the National Trust Act, 1999 and its rules for the second.
03Common questions
Does Rule 11 apply to every person with a disability?
No. It applies where consent is being obtained from a lawful guardian, and the definition in the rule is limited to individuals who, despite adequate and appropriate support, are unable to take legally binding decisions.
What must be verified?
That the guardian is appointed by a court of law, or by a designated authority under Section 15 of the Rights of Persons with Disabilities Act, 2016, or by a local level committee under Section 13 of the National Trust Act, 1999.
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