Filter Coffee #009

On Disabilities, Living Wills, & Power of Attorney

Aug 30, 2020

Dear Readers,

I am indeed gratified to see you all suggesting topics for me to discuss. It is heartening to see that not only do you read my posts, but also have a wishlist of topics that you want me to feature here. Recently, an elder citizen, Mr. S C Krishnan has asked me about Power Of Attorney, and my friend and avid reader S G Murali requested my thoughts about Living Will. I’ll try to meet their expectations today. But first, let’s talk about an important social issue related to Law.

👩🏽‍⚖️ Law & Disabilities

In 1995, a new law was enacted called the ‘Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act’. The aim was to recognise the rights and special needs of the disabled and provide for reservations in government jobs and educational institutions.

In 1999, a National Trust was created under a special statute bringing together the government, voluntary organisations and other networks to address the needs of the disabled, and more importantly to appoint legal guardians when required.

Although the 1995 law covered a narrow spectrum of disabled, it took another 11 years to make comprehensive changes and enact a new law in 2016 titled ‘The Rights Of Persons With Disabilities Act’. This law provided for reservation of 4% of jobs with the government and 5% seats in educational institutions either funded or run by the government. The 2016 law also recognised 21 different kinds of disabilities as opposed to 7 disabilities under the 1995 Act — however, this still did not adequately cover the disabilities manifesting in people with mental illnesses. Thus, another law was enacted in 2017 called the ‘Mental Health Care Act’ to bridge this gap.

As per Census 2011, out of the total population of India (121 Cr), about 2.68 Cr persons are considered ‘Disabled’ (2.21% of the total population). Two statistics stand out to me:

Out of 2.68 Cr, 1.5 Cr are males and 1.18 Cr are females
Majority (69%) of the disabled population resided in rural area

Hopefully, the next census in 2021 will see an improvement in these numbers.

While the Central and State Governments are expected to implement plans and projects to alleviate the hardship of the disabled — ‘differently-abled’ or ‘physically challenged’ are the more accepted terms these days — the benefits are not percolating to the rural areas. Since the government alone cannot meet the expectations in promoting health, education, skill development, accessibility and other initiatives, non-profit organisations are taking the initiative to fill the void. One such organisation, right in the heart of Bengaluru is The Spastics Society of Karnataka (SSK). It started off as a branch of the Spastics Society of India in 1982 and in 1994 it became an autonomous body.

I spoke to Indira Dave, Additional Director- Spastics Society of Karnataka (SSK), to learn more about the organisation. Hailing from an illustrious family in Shillong but a long time resident of Bengaluru, she has been actively involved with SSK for over three decades. Her husband Pravin Dave serves on the governing council of SSK.

Pras: Indira, can you tell me a little about your association with The Spastics Society of Karnataka?

Indira: I have been working with children with neuromuscular, or what is now known as Developmental Disabilities, in the Society for over 30 years now. I am a professional social worker from the Tata Institute of Social Sciences.

Pras: What does the word ‘spastics’ denote? How do parents of a spastic child cope?

Indira: Spastic is a term once used to define Cerebral Palsy; which is a permanent movement disorder that appears in early childhood. Parents of spastic children are given hands-on instructions by the physiotherapist for these children’s physical rehabilitation and training from an occupational therapist for day-to-day activities. These two therapies are of great importance and are given a great deal of emphasis for these children's well being. The earlier the child undergoes therapy, the better the prevention of further disabilities.

Pras: Can you please provide a broad perspective of the initiatives and activities undertaken by SSK?

Indira: The Society provides a Comprehensive Package of Diagnostic and Intervention Services to persons with Cerebral Palsy, Autism, Mental Retardation, Multiple Disabilities and Learning Disabilities. SSK also runs community-based rehabilitation and outreach programmes at Ramanagaram, Devanahalli and Indira Gandhi Institute of Child Health.

Pras: I was recently made aware of the inspiring and determined performance by one of your boys Bharat. Can you please share the details with my readers?

Indira: Bharat is a bright young man diagnosed with Dyskinetic Cerebral Palsy, and has been our student since 2004. He has now completed his Senior Secondary Examination from NIOS. He comes from an economically disadvantaged section of society and is a child of a single parent. As such, his education and therapy needs were completely looked after by SSK and the Child Welfare Fund of SSK.

Pras: Being economically disadvantaged, how does Bharat hope to fund his educational expenses? How can the Society help?

Indira: Reva University, where he has gained admission, was impressed by his determination to pursue education and he was given a generous rebate of over 30% in the fees. He approached the university of his own accord and they were duly impressed by his confidence and abilities. For example, to a question that was posed by the admission committee of how we would type on the laptop or eat food, his reply was “I am adept at using my toes to type on the laptop and I hold the spoon with my toes.” There are people like your readers who make small contributions which add up to his annual fee.

Pras: I see that the Society has set up the Child welfare fund. What does that fund do to help boys and girls who want to pursue opportunities like Bharat?

Indira: The Child Welfare Fund has been set up to provide for special aids and equipment for home use, for example specially designed chairs and tables for children. The fund is used to augment the financial support for special needs in the children. In Bharat's case, we got a sponsor to fund his laptop for college. Similarly, the fund provides for 50% of auto transportation expenses for parents from economically weaker sections. We also provide reimbursement for medicines, which is not covered by the government, and provide one set of school uniforms. We also provide partial financial support for corrective surgery.

Pras: I was very happy to see two of my old colleagues from the Brooke Bond Family, your husband Pravin Dave & my dear friend Vasanth Cavale are on the governing body of the Society. What is the role of this governing body which has many well-known names?

Indira: The role of the Governing body is to make sure that SSK is aligned with the goals and objectives of the organisation in its activities and its outlook. We have on this body several distinguished members of civil society, and of course parents and well-wishers.

Pras: If some of my readers wish to get involved with the Society's activities (aside from donating ), how can they do it?

Indira: They are welcome to volunteer, based on their own interests and areas of expertise, so that they may provide a beneficial experience to the children. Our Learners Centre has a majority faculty of volunteers — they are experienced and professionally qualified teachers who have retired but are eager to continue teaching more as a passion than for money. They can also raise funds through their own network for SSK.

Pras: Would you like to give a message to my readers?

Indira: Please come to the Society, interact with the children and get a glimpse of their lives so that they may count on you as a friend.

Pras: Thank you, Indira. The Society has done remarkable work and I am sure the readers will be equally impressed. I am sure there is a lot more to know. Thank you for your time.

Indira: I request your readers to 🔗 please visit our website.

Dear Readers, whilst donations are welcome, you also can register on the website as a volunteer and spend as much time as you can afford to with the children and make a direct impact on their lives.

📃 The “Will” to Live

You may be wondering what a living will is. Well, in short, it relates to end-of-life care, palliative medicine, advance care planning and of course the ethical considerations around each of them.

In contrast to a Will as a testament which takes effect upon the death of the testator, a living will ironically set out the person’s ‘end-of-life’ wish list. It is in the nature of an advance directive, and best understood by this illustrative operative portion of a living will. A living will might be framed like this:

When I am in a state where I cannot decide or am unable to communicate to the doctors of my decision, I wish my family and the doctors to be guided by this declaration of my wishes:

My overarching desire is to die with dignity.
I do not wish to be administered treatment that merely prolongs a terminal illness.
I do not wish to be under continued palliative care if that would only extend my agony with little or no hopes of recovery.
I do not wish to be put on a ventilator or any other life support device in an ICU.

I have signed this declaration whilst in full possession of my physical and mental faculties and dated it in the presence of the two witnesses who have attested my signature in my presence.

There is no legal sanction to living wills in India. Euthanasia, which is recognised in certain countries, is not recognised in India. In fact, there have been cases where the matter has gone to the court requesting the judge to permit the doctors to “pull the plug”.

In March 2018, the Supreme Court laid down the safeguards

Right to die with dignity is a fundamental right.
An adult human being having the mental capacity to make an informed decision has the right to refuse medical treatment including withdrawal from life-saving devices.
A person of competent mental faculty is entitled to execute an advance medical directive in accordance with safeguards.
In the case of incompetent patients and absence of advance medical directive, “the best interest principle” is to be applied and the decision is to be taken by competent experts.

The Court, however, made clear that the advance directives and the safeguards as mentioned in the judgment will remain in force until the Parliament makes legislation on this subject. If you wish to read more please click on this link: 🔗 Passive Euthanasia Archives | SCC Blog

If you have any further questions on the matter or would like to share your thoughts, please feel free to reach out in the comments section.

✍🏾 Power of Attorney (PoA):

Due to space limitations, I won’t be diving too deeply into the law governing Powers Of Attorney, which is ‘The Power Of Attorney Act’. Instead, for now, I will address the specific question that Mr. Krishnan posed:

Can one sell a property by giving a PoA to another person, and in that case, would the buyer have some concern about not dealing directly with the actual owner?

Let me first say that the Power Of Attorney Act is perhaps the shortest enactment, consisting of 6 Sections. It was enacted by the British in 1882 and still holds the ground. But the jurisprudence (case law) has been quite robust. There are a number rulings by various courts, including the apex court, on various facets of a PoA. One of the decisions of the Supreme Court was on the legality of transferring immovable property through an irrevocable general power of attorney (GPA). This decision frowned upon the practice of receiving the full consideration and giving a GPA authorising the attorney to hold the property and sell it at an opportune moment. This typically occurred when the owner was under an obligation to not alienate the property for a certain period of time but was eager to monetise. He would then adopt the irrevocable GPA route, hand over all the documents and the attorney would sell the property when the restriction on transfer lapsed. The apex court held that such ‘transfer’ of the property via GPA was not legal as it was not a ‘transfer’ within the meaning of the Transfer of Property Act.

However, in the case put forward by Mr.Krishnan's question, a specific power to sell given under a PoA is perfectly in order. To ensure that the buyer is comfortable, the PoA itself should be registered (with photographs and other details like PAN No., Aadhar No. etc) to establish the credentials of the principal (owner) and the attorney. The PoA would empower the attorney to hand over all the title deeds at the time of registration of the sale deed and receive the consideration by pay order or demand draft in favour of the owner himself which would give much more comfort to the buyer as compared to paying the consideration to the attorney. I have kept this response simple but I’m happy to answer any further questions on this matter — feel free to open a discussion in the comments.

Potpourri

My inconclusive travel plans for 2020

I got this forward from a friend and I thought it was very cleverly written. Hope you like it too. If you have read it before, it is worth a second read.

I have been in many places, but I've never been in Cahoots. Apparently, you can't go alone. You have to be in Cahoots with someone.

I've also never been in Cognito. I hear no one recognizes you there.

I have, however, been in Sane. They don't have an airport; you have to be driven there. I have made several trips there, thanks to my friends, family & work.

I would like to go to Conclusions, but you have to jump & I'm not too much on physical activity anymore.

I have also been in Doubt. That is a sad place to go & I try not to visit there too often.

I've been in Flexible, but only when it was very important to stand firm.

Sometimes I'm in Capable & I go there more often as I'm getting older.

One of my favourite places to be is in Suspense! It really gets the adrenaline flowing & pumps up the old heart! At my age I need all the stimuli I can get!

And, sometimes I think I am in Vincible but life shows me I am not.

People keep telling me I'm in Denial but I'm positive I've never been there before!

This day, that year

On August 30, 1967, the Senate confirmed the historic appointment of Thurgood Marshall as the first Black justice in the U.S. Supreme Court, where he served from 1967 to 1991. It is worth reading about this remarkable jurist. (🔗 click here)

If you like to see a movie based on Marshall’s first-ever challenging case, when he was a lawyer, do watch the movie ‘Marshall’ on Netflix.

Speaking of Firsts, let’s come back to India, and look to a woman who has achieved many firsts. Justice Leila Seth (1930-2017) was the first woman to top the Bar examination in London, first woman judge of the Delhi High Court and the first woman to become the Chief Justice of a High Court (Himachal Pradesh). She is the mother of the much-celebrated writer Vikram Seth.

I recommend to you her autobiography ‘On Balance’ in which she talks about her life, its joyous as well as its difficult moments, and her early years of homelessness and struggle.

For those interested in Fund Fundas

VC Fund Formation: Revisiting the Singapore v. Cayman dilemma

WEBINAR | WEDNESDAY, SEPT 2ND | 4.30 PM IST

The challenging post-COVID market environment has not diminished interest in Venture and Private Equity fund formation, which has in fact been fuelled by investors’ search for alternative asset classes and managers’ quest for operational, cost and tax-friendly jurisdictions. However, aspiring fund managers are dealing with a slew of recent regulatory developments in Singapore and Cayman.

Join us for 🔗 this live webinar covering current developments, practical insights on how best to manage regulatory aspects in both jurisdictions with a focus on fund structures, tax, compliance and general interface with the respective financial services regulator.

Finally, a few people have asked me for an email for iProbono which was featured in FC008. Please feel free to write to one of its Directors, ✉️ Binita Modi.

I hope you enjoyed your Sunday cup of Filter Coffee! Until next week, please take care and be safe!

P.S.

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