What is guardianship? How does this differ from the Curator-ship and Adoption revealed in the 2017 National Civil Code?
Guardianship is defined as “a person appointed by the court to take care of an incapacitated, incompetent, or quasi-competent person and assigns a duty to protect such persons’ rights and interests.”
The National Civil Code 2017 includes two separate chapters on guardianship and curator-ship, or “Mathbar” as it is known in Nepal.
Even a lawyer is unsure of the exact meaning of the legal term “custody of a child.” In fact, we frequently receive inquiries from clients who wonder, “What is the difference between legal guardianship, adoption, and curator (Mathbar)?”
All of these terms have legal meanings in relation to legal arrangements for the care and custody of children, but there are some significant differences between them, namely legal guardianship, curator-ship, and adoption.
The distinction between guardianship, curator-ship, and adoption
The National Civil Code of 2017 establishes guardianship priorities within close relationships that are the ipso facto guardian of an incompetent or quasi-competent person assigned to perform a task in the best interests of the child. Close relationships with the child include:
A husband or wife living in the same household;
B. the father or mother;
C. a son, daughter, widow, or daughter-in-law living in the same household;
D. a separated husband or wife,
E. a separated son, daughter, widow, or daughter-in-law;
F. Grandfather or Grandmother,
G. grand-son or grand-daughter;
H. elder or younger brother or sister;
The above-mentioned relationships with the child of a differently-abled, incompetent, or quasi-competent person qualify as guardianship.
A petition must be filed with the court.When there are multiple guardians.
In Nepal, curatorship is known as “Mathbar.”
If a minor does not have a guardian, as defined in the preceding list of priority relationships, any person may act as curator of such a minor for the maintenance, health, education, care, and protection of property belonging to him or her until the minor reaches the age of eighteen.
Curatorship or “Mathbar” The court appoints a curator or Mathbar.
The court only appoints guardianship in the event of a dispute. When a minor under the age of ten turns ten, he or she may have the guardian of their choice.
He or she must petition the court for a court order appointing the guardian of their choice.
The primary distinction between the two is that Guardianship is the “administrator” of an incompetent individual. He or she has sole legal authority within the boundaries of guardianship.
The curatorship, or “Mathbar,” on the other hand, has no legal standing to file a lawsuit.
The curator shall have rights regarding the upkeep, health, education, care, and protection of his or her property. The most significant distinctions between adoption and guardianship are permanent. When adopted, the legal validity remains permanent.
In the curator-ship and Mathbar, the child management process is temporary. The child’s relationship with the guardian is the same as the child’s relationship with the biological parent.
Your marital status
The rights and duties of biological or legal parents are completely terminated in legal adoption. Whereas biological parents’ legal relationship does not end with guardianship and curatorship.
Section 183 of the 2017 National Civil Code establishes a biological parent’s right to visit his or her children. When the court grants the right of acceptance by order, the biological parent’s visitation rights are usually terminated. Biological parents retain the right to meet their children in guardianship and curator-ship.
A child has the right to inherit property from his or her biological parents while under guardianship or curatorship. Adopted children are not entitled to an inheritance from their biological parents unless the parents expressly state so in their will.
The adoptive parent’s legal right to own property is retained by the adopted child.
Child Support If a child is adopted, biological parents are not required to pay child support. Under legal guardianship, biological/legal parents may be required to provide financial support for their child.
Adoption necessitates more procedural work involving a legal process than guardianship, though both procedures necessitate the receipt of paper from the relevant Ward Office.
Legal guardianship is temporary, whereas adoption is permanent.
Should you have any questions please do not hesitate to contact us for guardianship law.
Alpana Bhandari is a founding partner and CEO of Prime Legal Consultants and Research Center. She graduated from American University Washington College of Law. She specializes in corporate/arbitration and family law.