Jewish Law

Lesson # 513 - Guardianships, part 1

Maimonides ends the laws inheritance with the laws of the guardian. In his last paragraph he states “Although the guardian is not required to render an account he must make reckoning to himself privately with great care and beware of the Father of these orphans who rides upon the skies, as it is written: Extol Him that rides the skies… A father of the fatherless (Psalms 68:5-6). In Hebrew the term is appotropos, from the Greek meaning “the father of the minors” -  The guardian is appointed not only for minors, but also for other persons who are not capable of taking care of their fiscal affairs. The guardian may be appointed by the father of the minor and/or by Beit Din. Beit Din is the guardian of all minors; it is ordinarily not the guardian of adults.

Yaakov, a person who has a minor child who will be his heir, or a pregnant wife, whose child may or will be his heir should appoint a guardian in his lifetime or by a last will and testament to protect the interest of the minors in case of his death. If Yaakov has a minor child and adult children, his appointment of a guardian is effective only insofar as it applies to the minor child or children. However, if Yaakov does appoint David to be guardian of the minor and adult children, David may so act on behalf of all the children if there is no objection from the adult children. If any of the adult children object, then David cannot act as the guardian of the shares of the adult children in Yaakov’s estate.

The father may appoint any person he wants to be the guardian of his minor child. He may appoint a Jew or Gentile, a woman or a minor, a mentally deficient person or a deaf-mute. The guardian need not be a relative to the minor, but may be. Also the Beit Din should not appoint someone related to the judges if the guardian will be compensated for his stewardship.

Beit Din may agree to compensation for the guardian it appoints to be paid from the assets of the minor if the guardian cannot take up his function as guardian because he cannot afford not to receive compensation. Beit Din has to deter- mine if persons who will serve without compensation can act as capably as persons who cannot afford to act without compensation. The guardian appointed by the Beit Din will have to take an oath regarding his stewardship of the assets of the minor when the term of the guardian ends upon the minor achieving adulthood. If Beit Din cannot find a guardian who is willing to take the oath, they may dispense with the oath.

When beit Din appoints the guardian, he and Beit Din should take an accounting of each and every asset that is transferred to the guardian. Two copies should be made and Beit Din keeps one and the guardian keeps the other. The purpose is that Beit Din will know what the guardian has to return when his stewardship is over.

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