Guardianship of the incapable: minors, spendthrifts and the insane

Legal capacity protects and limits: the minor, the prodigal (safih) and the insane (majnun) do not dispose freely of their assets; fiqh institutes guardians for them under judicial control.

The guardianship of the minor

The person who manages is a true manager as long as he does not spoil; if he spoils, he renders account.Sunan Abi Dawud, kitab al-buyu'

• The legal guardian: the father first, then the grandfather, then the testamentary appointee (wasi of the father), and the judge in default of all: al-Mawardi details this rank and the supervision of the judge in Al-Ahkam as-Sultaniyya (chapter of the guardianship of the minor).
• The management of the orphan's assets: preserve them and make them fruitful; "those who unjustly consume the assets of orphans only consume fire into their bellies" (sura an-Nisa 10); expenses of education and maintenance on the patrimony of the child are lawful at the just necessary (sura an-Nisa 5-6).
• The restitution at majority: at the established economic discernment (sura an-Nisa 6), with inventory before witnesses; abusive retention engages responsibility (Ibn Qudama, Al-Mughni, chapter of the management of the minor's assets).
• The contemporary codification: the Moroccan Family Code (law No. 70-03, 2004) takes up this architecture: the legal representative exercises his guardianship over the person and the assets of the minor until majority, and serious acts on the assets of the ward require the authorization of the court.

The curatorship of the prodigal and the insane

• The safih (prodigal): the one who squanders in the illicit and the futile; "do not entrust your assets to the incapable... feed them and clothe them from them" (sura an-Nisa 5): the judge withdraws management while financing him reasonably; the healing of conduct reopens capacity.
• The insane: his patrimonial acts are null; the guardian manages for his best interest; his cultic obligations are lifted.
• The ill person losing lucidity (evolving dementia): preventive acts during lucid life (protection mandate, donation) are prepared before the installation of incapacity.

The control of the judge

Every guardianship is under control: rendered accounts, authorization of serious acts (real estate sale of the minor), removal of the unworthy guardian. The modern rule of the guardianship judge takes up this classical architecture that the Moudawana codified.

Practical note

Families prepare: inventory of the assets of the children, testamentary guardian named in writing, protection mandate for aging parents: foresight is the best guardianship.