Lesson # 245 • Guardians (Part Two)

Who may be appointed a guardian
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, of a deaf mute. The Talmud and some of the codes also discuss the father appointing a slave as the guardian.

Beth Din should not appoint a Gentile, a woman, or a minor [nor a slave] as a guardian nor anyone who is not qualified, even if he is in possession of Yaakov's assets, unless it is proved that he was appointed by Yaakov. And that is why he is in possession of Yaakov's assets.

It is presumed that if someone is unlearned he is not qualified. It is stated in Ethics of the Fathers 2:6, "A boor cannot be fearful of sin, an unlearned person cannot be scrupulously pious." Beth Din should appoint someone who is reputable and trustworthy; who will know how to protect and assert the rights and interests of the minor and to plead his cause, and who is knowledgeable in worldly affairs, in order to protect the assets left to him by Yaakov and to turn a profit from the operation of the estate. The guardian appointed by Beth Din will have to take an oath regarding his stewardship of the assets belonging to the minor when the term of the guardian ends upon the minor achieving adulthood. If Beth Din cannot find a guardian who is willing to take such oath, they may dispense with the oath. The guardian need not be a relative to the minor, but may be, except that if he is related to the minor, he may not take possession of his real estate. Also, Beth Din should not appoint someone related to any of the judges if the guardian will be compensated for his stewardship.

A guardian may not be appointed without his consent.

Until the guardian takes up his duties by taking possession of some of the assets of the minor or commencing to work on his behalf, he may refuse to embark on the role of a guardian. Once he has taken possession of some of the assets of the minor or commenced working on his behalf, he may no longer refuse to continue the task of the guardian, unless he receives permission from Beth Din, whether or not he receives compensation.

Ordinarily an employee may terminate his employment at will (although he may be liable for damages to the employer). That is because a person can be a slave only to God and not to men. A guardian is not a slave to any employer but is an employee of God because he does His work in taking care of the minor. This is true if the guardian continues to reside within the community. However, if he moves to another community, whether for a protracted period of time or permanently, he may gather all of the assets of the minor, bring them to Beth Din, and terminate his role as the guardian. Beth Din will appoint another guardian to take his place.

Compensation of the guardian
Beth 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. Beth Din has to determine if persons who will serve without compensation can act as capably as the persons who cannot afford to act without compensation. If the guardian is to be compensated, it has been suggested that the relatives of the judges should not be appointed; if the guardian is related to the minor, he may be compensated.

The guardian may purchase clothes for himself from the assets of the minor if it is deemed essential to be dressed properly so that he may be respected when he negotiates to enhance the assets of the minor. There is authority that the minor can protest such action on the part of the guardian.

Taking up the role of a guardian
When Beth Din appoints the guardian, he and Beth Din should take an accounting of each and every asset that is being transferred to the guardian. Two written copies of such accounting are made and Beth Din must keep one and the guardian keeps the other. The purpose is so that Beth Din will know what the guardian has to return when his stewardship is over.

Beth Din divides the assets of the estate into component parts. (1) The cash is invested with Yitzchak, a trustworthy person. The person is described in the codes as one who owns high quality real estate, is trustworthy, learned in Torah studies, and has never been excommunicated. If he does not own real estate, he gives a pledge of broken pieces of gold that are not distinctive. The reason for their not being distinctive is that no person can later come forward and plead that the gold pieces belongs to him. Since the pieces are broken and not distinctive, he cannot prove his allegation.

Yitzchak is to do business with the money and to share in the profits with the minor, The agreement is to give the minor a small percentage of the profits, such a quarter or such other percentage as Beth Din shall negotiate with the guardian, but not to require that the minor bear any of the losses if such ensue. One opinion holds that this person is technically not a guardian; the other opinion holds that he too is a guardian. Beth Din sets the percentage of profits that Yitzchak must turn over to the minor and retains the balance for himself. If Beth Din cannot find a person who is willing to share profits but not require the minor to bear apart of the losses, then Beth Din purchases essentials, such as food for the minors, and real estate is purchased with the balance and delivered to the Beth Din-appointed guardian.

The Beth Din turns over to the guardian everything except for the cash of Yaakov the decedent.

(2) The personal property is appraised and sold in Beth Din, or in the closest market place, and the money realized from the sale is added to the other money belonging to the minor to be used as designated in (1) above. The real estate, all unsold personal property, and accounts receivable are transferred to the guardian.

In the next lesson we shall IYH discuss the duties and powers of the guardian.

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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