Lesson # 247 •Guardians (Part IV)

When the minor reaches his majority, Beth Din has no discretion but must terminate the guardianship and turn over to the minor all of his assets. Beth Din can, however, provide for training the former minor so that he will be a productive citizen. However, if the father of the minor before he died provided that the guardian should continue to function until the minor reached a specified age beyond his attaining his majority, or having certain admirable qualities, the wishes of the father will be adhered to by Beth Din.

When the minor reaches adulthood, the guardian must turn over to him all of the assets of the minor that the guardian has in his possession. If any assets are missing because they were stolen or lost or destroyed by force majeure, the guardian takes the same oath as does a gratuitous bailee (Shomer Chinam). The oath consists of 3 parts: (i) that the guardian was not negligent in causing the loss of the asset; (ii) that he did not make unauthorized use of the asset before it was lost or stolen; and (iii) that the asset is not in the possession of the guardian. If the guardian is appointed by Beth Din, he is not required to render an accounting of the receipts and disbursements. He may tell the minor that he is turning back to him that which remains from his assets. In such event he must take an oath while holding a sacred object that he did not rob the minor of anything. If as stated above the guardian was appointed upon condition that he does not take such an oath, such condition will be upheld. However, if the guardian was appointed by the father of the minor or by another ancestor of the minor, he is required to render an accounting, but he is not required to take the oath unless it is pleaded with certainty that the report of the guardian is not accurate. The current practice is for the guardian to render an accounting even if he was appointed by the father of the minor since the guardian does not take an oath. Beth Din must in each case devise the exact language and form of the oath. If there are two competent witnesses that the guardian has not accounted accurately or turned overall of the assets of the minor, or is guilty of misconduct, the guardian must pay such damages. If the guardian was appointed by a secular court he must render an accounting since this is usually the practice in secular courts.

In all situations where the guardian has a monetary interest in the outcome of the gain or loss of the assets even if appointed by the father of the minor, the guardian must take an oath when he returns the asset to the minor upon his achieving his majority. In all situations Beth Din proclaims a ban on any person who is a guardian of minors who has taken assets belonging to minors.

The major responsibility of accounting for the assets of the guardian is to the true Father of the orphans. “A father of the fatherless, and a judge of the widows, Is God in His holy habitation" (Psalms 68:6). Levi pleads that Yaakov gave him money with instructions to distribute the money to the sons of Yaakov: Levi may distribute such money to all of Yaakov's sons and need not take an oath, since he is similar to a guardian appointed by a father of a minor. However, if Levi asserts that he is distributing the moneys to less than all of the sons of Yaakov; he must take an oath that he does not retain anything belonging to Yaakov; since the distribution is to less than all of Yaakov's sons, Levi is not deemed to be in the role of a guardian. Levi must take an oath only if it is independently known that Yaakov gave him the money. If it is not independently known, Levi is believed without an oath because of migo. Levi could have remained silent and have kept the money because no one knew that Yaakov gave him the money. Since (migo) he did not keep silent, he is believed when he states that the money was to be given only to some of the sons. If any of the sons of Yaakov are minors, Beth Din will appoint a guardian for them and the guardian will request that Levi take an oath in all instances.

If the guardian dies and his heirs find that the books and records of the guardian show that the guardian is owed money he has expended on behalf of the minor, such books are not in and of themselves sufficient to base a claim by the heirs of the guardian against the assets of the minor. However, had the guardian been alive, he would have been believed.

Removal of the guardian
If there is a rumor that David, the guardian, is eating and drinking beyond his means or way of life and spending more on things than he used to do and perhaps beyond his known means, Beth Din should examine him to see if he is spending the assets of the orphans on himself. Beth Din may impose an oath upon the guardian that he did not steal anything belonging to the minor. There is a difference depending upon whether the guardian was appointed by the father or by Beth Din. If he is appointed by Beth Din, if it turns out that it is possible that the guardian may be spending the moneys of the minors on himself, then he is removed as guardian and another guardian is named in his place. However, if David, the guardian, was appointed by the father, Yaakov, he is not removed on the basis of a rumor, and all doubts are resolved in his favor. There is an opinion that even if Beth Din appointed the guardian, he cannot be removed unless there are witnesses to prove that the guardian used the assets of the minor.

However, if it was shown to Beth Din by witnesses that the guardian has been using assets of the minors, he is to be removed even if he was appointed by the father. Beth Din has broad discretion whether to remove the guardian. There is an opinion that it makes no difference whether the guardian was appointed by Beth Din or by the father; the procedure is the same in both situations and the guardian is not removed unless there is clear proof that he misused the funds of his wards. Opinions differ as to whether it is necessary for the guardian to be present when Beth Din receives testimony from witnesses regarding the conduct of the guardian. If Beth Din finds that the guardian stole or used for himself assets belonging to the minor, the guardian must make restitution to the minor. If the guardian when appointed has all of the virtuous qualities that are required and then changes his ways and no longer has these moral qualities, he is to be removed as a guardian. Beth Din is the final arbiter as to whether he should be removed. Beth Din may impose an oath upon the guardian that he did not steal or use any assets belonging to the minor for himself. If Beth Din finds that the guardian stole or used for himself assets belonging to the minor, the guardian must make restitution to the minor. However, if the guardian was appointed by the father and at the time of his appointment was not honest or virtuous, and the father knew of his conduct and nevertheless appointed him, the guardian is not removed on the basis of not being honest, unless he stole from the minor. If a guardian is removed he must take an oath that he did not use assets of the estate, and failing to take such oath he must compensate the estate for an amount that Beth Din shall assess.

The subject matter of this lesson is more fully discussed in volume VIII chapters 290 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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