Lesson # 244 • Guardians (Part One)

In the Shulhan Aruch there are a few more chapters dealing with heirs, the subject matter of our lasat few lessons. I have decided, however, to go on to the last chapter dealing with “Laws of Inheritance”, the chapter dealing with guardians.

Maimonides ends the Laws of Inheritance (11:12) with the laws of the guardian. His last paragraph states: “Although the guardian is not required to render an account, as we have stated, he must make reckoning to himself privately with great care and beware of the Father of these orphans who rideth the skies, as it is written, Extol Him that rideth upon the skies. A father of the fatherless” (Ps.68:5-6).

Throughout these lessons, when minors are mentioned, the term often associated with the minors is the person who is called a guardian. In Hebrew the term is Appotropos, from the Greek meaning "the father of the minors." In these lessons, I have referred to the minor child in the singular, but all of the laws apply equally regardless of the number of minors involved.

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 Beth Din. We will examine who should appoint the guardian, the method of appointment, who may be appointed, how the guardian commences his duties, the powers and duties of the guardian, the compensation of the guardian, the method of his completing the task, removing a guardian, and other matters dealing with the guardian.

There is also a section dealing with a person (Shlomo) who takes care of a minor without being officially appointed as a guardian. I have designated him (Shlomo) as an "unofficial guardian". (There are laws dealing with slaves of an estate, and how the guardian should handle their upkeep and sale; these laws are omitted here.)

The father of the minor children is designated as "Yaakov" and the guardian of the minor is designated as "David."

Who should appoint a guardian
The term "Beth Din " as used herein is the official Beth Din of the community, or if the community has appointed a rabbi to be the sole judge of the community, the term Beth Din will apply to such rabbi. It does not refer to any three persons who decide to constitute themselves as a Beth Din. If there is no Beth Din in the community, then the Beth Din of the closest town will have jurisdiction over the matters discussed in this chapter. Beth Din is the guardian of all minors; it is not the guardian of adults. Unless the adults are incompetent. Yaakov, a person who has a minor child, Naftali, who will be his heir, or a pregnant wife, whose child may or will be his heir, should appoint a guardian (David) for his minor son Naftali, in his lifetime or by a last will and testament to protect the interests of the minors in the 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 the guardian of the minor child and the adult children, David may so act on behalf of all 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 reason is that the moment that Yaakov dies, his estate belongs to his heirs, and Beth Din has no jurisdiction over the adults, only over the minors who are always wards of Beth Din.

Yaakov can during his lifetime by a trust document or by a will set up a trust of his assets and the trustee of the trust will administer the shares of the minor children and the adult children as provided for in the trust. The guardian will oversee the minor's interests until he reaches adult- hood. The father may decide that he does not want to appoint a guardian for his minor son and may declare that his minor son be given his share outright without the appointment of a guardian; the father's desire must be adhered to. The father may not grant David, the guardian whom he appoints, the power to appoint another guardian, even if Yaakov names the other person whom he wants David to appoint as a guardian, whether the exercise of such appointment is to take place prior or subsequent to the death of Yaakov: If David asks Yaakov; who is on his death bed, if he wants David to take charge of Yaakov's assets, and if Yaakov assents, David is appointed a guardian of the minor child of Yaakov. If David was the manager of the assets of Yaakov for an extended period of time before Yaakov's death, and then Yaakov dies, David will not necessarily be appointed by Beth Din to be the guardian of the minor child. It may be that Yaakov felt confident that he, Yaakov, could adequately supervise David, but does not have confidence in others supervising the activities of David. However, if Yaakov appointed David the manager of his assets close to the time of his death, Beth Din will appoint David the guardian of the minor child, unless Beth Din determines that he is not qualified to be the guardian; Beth Din may appoint another since Yaakov did not actually appoint David the guardian.

If Yaakov fails to appoint a guardian for the minor child, then Beth Din may appoint itself as the body to protect the interests of the minor. If Beth Din does not desire to exercise such authority, then Beth Din must appoint a guardian. However, if Beth Din determines that the adult brothers can manage the affairs of the estate including the protection of the minor, then Beth Din will not appoint a guardian but will designate the adult brothers to manage the affairs of the estate.
If Yaakov appoints two guardians and they cannot make decisions because of disagreement, then Beth Din should appoint a third guardian acceptable to the other two, who will also vote on the decisions to be made. In all events, if there is still no way to resolve their conflicts, the decision of the guardian appointed by the Beth Din will be controlling.

Assume Yaakov appoints two guardians, and one dies. Two opinions. One holds that Beth Din shall appoint another guardian to replace the deceased guardian, and the other opinion holds that Beth Din should not appoint a second guardian and the remaining guardian functions by himself.

All that is said about the guardian of a minor applies to a situation where the Beth Din appoints a guardian to protect the interests of a person who needs protection, such as a deaf-mute or a mentally deficient person.The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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