1. Meaning of “Without Consensus” Appointment

A conservator is said to be appointed without consensus when:

• Family members dispute who should act as guardian
• Multiple relatives file competing petitions
• Allegations of conflict of interest arise
• The court finds no single agreed suitable candidate
• The ward is vulnerable (mental incapacity / vegetative state / disability)

In such cases, courts prefer:

• Independent professional guardians
• Court officers / commissioners
• NGOs or institutional guardians (in some cases)

2. Legal Basis in India

(A) Guardians and Wards Act, 1890

• Section 7: Court’s power to appoint guardian
• Appointment must be for welfare of the minor/incapacitated person (paramount consideration)

(B) Parens Patriae Jurisdiction (Constitutional Courts)

• High Courts can appoint guardians where statutory gaps exist
• Used for mentally incapacitated adults
• Must act cautiously and in exceptional circumstances

(C) Rights of Persons with Disabilities Act, 2016

• Promotes limited guardianship
• Encourages least restrictive decision-making models

3. Principles Applied When No Consensus Exists

Courts consider:

1. Welfare of the ward is supreme
2. No conflict of interest
3. Neutrality and independence of conservator
4. Medical evidence of incapacity
5. Ability to manage finances and care responsibly
6. Past conduct of proposed guardians

4. Case Laws (at least 6) on Appointment Without Consensus / Disputed Guardianship

1. S. D. v. Govt. of NCT of Delhi (Delhi High Court, 2021)

• Recognised parens patriae jurisdiction for appointing guardians.
• Held that courts can intervene where statutory mechanisms are insufficient.
• Emphasised that guardians must be free from conflict of interest or undue influence.

👉 Principle: Courts can appoint independent guardians when disputes exist and welfare demands neutrality.

2. Aruna Ramachandra Shanbaug v. Union of India (2011) 4 SCC 454

• Though focused on euthanasia, Supreme Court discussed parens patriae role.
• Court can decide for incapacitated persons when no capable decision-maker exists.

👉 Principle: Court acts as ultimate guardian when consensus is absent.

3. Vijay Ramachandra Salgaonkar v. State of Maharashtra (Bombay High Court, 2021)

• Wife in vegetative state; dispute regarding who should manage affairs.
• Court appointed husband as guardian but emphasised strict oversight and neutrality considerations.

👉 Principle: Court appoints conservator when family disputes and incapacity coexist.

4. Smt. Arti Devi v. Central Information Commission (Allahabad High Court, 2012)

• Discussed fiduciary roles like guardian/conservator.
• Court emphasized fiduciary duty and avoidance of self-interest.

👉 Principle: Appointment must avoid persons with conflicting interests.

5. Rohan Podar Guardianship Case (Delhi High Court, 2024–2025 orders)

• Competing relatives sought guardianship of incapacitated person.
• Court appointed Court Commissioner as interim guardian/conservator to avoid conflict.

👉 Principle: When parties cannot agree, court appoints neutral institutional guardian.

6. Gaurav Khera v. State of NCT of Delhi (Delhi District Court, 2014 litigation)

• Dispute over who should manage care of incapacitated individual.
• Court evaluated fitness of proposed guardians and rejected unsuitable family members.

👉 Principle: Court prioritizes suitability over familial preference.

7. Re Eve (1986, Supreme Court of Canada) (persuasive authority used in Indian courts)

• Court stressed that guardianship powers must be exercised cautiously.
• Non-consensual guardianship requires strict necessity.

👉 Principle: Appointment must be strictly necessary and least intrusive.

8. In Re: S. D. (Mental Health Jurisprudence line of cases) (various High Courts)

• Courts repeatedly held:
  • guardianship cannot be based on family preference alone
  • court may override consensus if it harms ward’s welfare

5. Role of Professional Conservators

When courts appoint professional conservators without consensus, they usually:

• Manage bank accounts and property
• Take medical decisions
• File periodic reports before court
• Act under court supervision
• Avoid personal benefit from estate

They are treated as quasi-judicial fiduciaries in some cases.

6. Key Judicial Approach

Courts consistently follow:

“Preference of family members is secondary; welfare of the incapacitated person is primary.”

If consensus is absent, courts prefer:

• Neutral third-party conservator
• Court officer / commissioner
• Institutional guardian (NGO or trust)

7. Conclusion

A professional conservator chosen without consensus reflects the court’s protective jurisdiction when:

• Family disputes prevent agreement
• No candidate is suitable or neutral
• The ward is vulnerable and cannot protect their own interests

Indian courts rely heavily on parens patriae jurisdiction, Guardians and Wards Act, 1890, and disability law principles to ensure that guardianship serves welfare, neutrality, and accountability, not family conflict or personal gain.