Lesson # 419
Guardians (part 3)
We continue with a topic that has much relevance today since every time a young person dies and there is no one to take care of his children the topic becomes very relevant. Assuming that the guardian has been appointed as described in prior lessons, and he has entered into doing his duties, what now that the minors have reached adulthood?
There is a dispute in the Talmud whether the guardian must take an oath regarding the assets that he is about to deliver to the minors who have now reached adulthood. The are several opinions in the Mishna. (See T. Gittin 52a) The first tanna of the Mishna holds that if the guardian was appointed by the father of the minors the guardian is required to take an oath. If, however, he was appointed by the Beit Din he need not take an oath regarding the assets that he is turning over to the minors who have attained adulthood. The theory being that when the father appointed the guardian he would not have accepted the guardianship if he did not want to benefit the father and the fact of having to take an oath will not deter him from making the father comfortable. But when Beit Din appointed the guardian he has no benefit such as making the father happy and therefore he would not accept the role of guardian if he had to take an oath as to the assets. The tanna Abba Shaul holds the opposite. When Beit Din appoints the guardian, he is so pleased that they recognize his honesty and ability that he is ready to take an oath since he has benefited his reputation. But when the father appointed the guardian, the guardian gets nothing of benefit and he will not accept to become guardian if he has to take an oath. Rabbi Eliezer b. Yaakov holds that the guardian always takes an oath whether he was appointed by the father or by Beit Din. The codes hold that the halacha follows the opinion of Abba Shaul. However, if Beiit Din cannot find anyone to accept the role of guardian, they will appoint him without the necessity of his having to take an oath when he finishes his term as guardian. If the guardian pleads that he loaned money to the assets of the minors, he takes an oath and collects such amount from the assets that he has remaining in his hands.
There may be situations where the guardian is negligent in handling the assets of the minors. One view is that he is not liable whether appointed by the Beit Din or by the father. Because if he would have to make restitution to compensate for his negligence he would not accept the guardianship. Another view is that the guardian is liable no matter who appointed him to be guardian. A third opinion holds that if Beit Din appointed him to be guardian he is liable for any acts of negligence and even if without negligence the assets were lost or stolen.
The guardian whether appointed by the father or by Beth Din may refuse to accept the appointment until such time that he actually marshals the assets into his possession. Once the assets have come into his possession he has embarked on the guardianship and cannot relieve himself of the responsibility without the permission of Beit Din. The same applies even if he did not gather in the assets but commenced to represent the minors in dealings with others. A good reason for Beit Din to permit him to resign is that he moved to another community. Then Beit Din will appoint another guardian in his place.
Beit Din, if it hears that the guardian who Beit Din appointed is spending on himself more than he ordinarily would, may ask him to account and may dismiss him and appoint another guardian to take his place.
There is an opinion in the codes that if any of the minors died the appointment is voided and there must be another appointment of this guardian or another guardian.
A guardian need not be appointed to manage all of the assets of the minors. He may be appointed for a specific task only. A guardian may be appointed to divide the assets of the father when he died and not to be their guardian after the division is made. This applies if among the heirs were some adults and some minors and the adult heirs wish to take possession or their part of the estate. Beit Din may divide the assets even if all of the heirs are still minors if Beit Din feels such divisions beneficial to the heirs. There are different holdings how the assets are divided. One view is by lottery. If the guardian wishes to divide the assets as he sees fit he must obtain the consent of the Beit Din.
If the property of the minor orphans caused damage, the classical case of the Talmud is the ox belonging to one of the minor's allegedly caused damage. A guardian is appointed to protect the interests of the minor. For if he loses his case, the ox may become thereby a forewarned ox and will be liable to greater damage payment in the future. Also the damages are paid out of the assets of the minor although the ox should have been watched by the guardian when he took over the assets of the minor.
There are times where the guardian is not appointed by the Beit Din or the father, but he just assumes that role by the minors residing with him. This applies only if the minors are at least nine years old. And he takes care of their affairs. The halacha recognizes him as a guardian of the minors so residing with him. The same holds true if the person they are residing with is a woman. She becomes their guardian. There is a difference of opinion that when the minors reach adulthood and his guardianship terminates whether he has to take an oath regarding their assets as he would have to take if he had been appointed by the father or by Beit Din.
Ordinarily a guardian is not appointed to manage the affairs of adults unless they are incompetent. Or unless the adult is absent from his home and his whereabouts are unknown and his property is in jeopardy of being destroyed or lost. Beit Din on its own motion or of a neighbor may appoint a guardian in such instances. In these three lessons we just got a glimpse of some of the laws of guardians.
The subject matter of this lesson is more fully discussed in volume VIII of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased at local Judaica bookstores. Questions to email@example.com