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An Islamic perspective on Guardianship

By: Bayynat editor

Islam defines three categories of people who cannot be in charge of their own affairs. The first category includes youngsters who have not yet reached the Islamic legal age. The second includes people who happen to be insane; in the sense that they lack instinctive judgment or a complete dislocation from reality. Insanity, in this context, is considered a permanent obstacle. The third category includes the safih, one who does not know how to spend his money reasonably for his needs.

The dictionary defines a guardian as one who looks after, protects, or defends someone. In other words, guardianship is an obligation for upon those who lack the qualification of independence. Those people cannot conduct their own affairs on their own and thus need a guardian.

 In Islam, there are four levels of guardianship: guardianship by the father and the grandfather on the fatherís side, guardianship of the guardian, guardianship by an Islamic authority, guardian by the just believer. The aforementioned 4 levels will be discussed in accordance to the view of His Eminence, the late Sayyed Muhammad Hussein Fadlullah (ra) as mentioned in his book, Islamic Rulings.

First level: Guardianship by the father and the grandfather on the fatherís side

Guardianship by the father and the grandfather on the fatherís side is confirmed on the young until he reaches the Islamic age and on the insane and safih-if they had reached puberty-until the insane becomes same and the safih becomes rashid. It is important to note that a rashid is an opposite of safih. The guardianship of the father and the grandfather on the fatherís side stems originally from their blood ties to the person under their guardianship, so it does not need the appointment of the Islamic authority, nor his supervision and permission.

The guardianship of the father and grandfather- if they are alive is at one level, so if they both take up one matter and the action of one of them occurred before the other, in this case his action becomes valid not the other, otherwise both of their actions becomes invalid, which is something that seldom happens, especially because often it is the father who takes control without the objection of the grandfather.

Second level: Guardianship of the guardian (wasiy)

Guardianship of the guardian stems from the guardianship of the one who appointed him, who is the father or the grandfather on the fatherís side, so he becomes like the original guardian after his death, and this is better than handing over control to the Islamic authority. The condition for its validity from each of the father or the grandfather is the absence of death of the other, and its authority widens or narrows according to the restraints that the author of the will has put in his will.

The conditions of the guardian are reaching the Islamic age, sanity and reasonable conduct; being male is not a condition, nor righteousness, but it is sufficient that he is trustworthy and abides by the restraints and guidelines which the author of the will had specified. Also, Islam is not conditional unless if an evil may take place by entrusting a person to a non-Muslim.

It is not obligatory on the guardian to attend himself to guardianship matters unless if this was a condition in the will.

Third level: Guardianship by an Islamic authority

We mean by Islamic authority the righteous scholar of Islamic law; he becomes the guardian of someone who does not qualify for independence only when the original guardian dies without the existence of a guardian appointed by them (the two original guardians). Based on this, if the person lacking the qualification of independence becomes lacking a guardian and it is possible to turn to the Islamic authority, it becomes not allowed for any Muslim, even if one of the personís relatives, to have any control over any of the personís financial matters in things like selling or buying, nor over any of their exceptional personal matters that need the opinion of the guardian, unless after consulting the Islamic authority.

Fourth level: Guardianship by the just believer

Guardianship should be exercised by the just believer, who is a sane, reasonable, experienced and Sharia-abiding, drawn from amongst all the believers, whether a relative of the person under guardianship or not. The guardianship by several believers is on one level, so if one of them takes control, his actions are executed and valid, and if two of them take action, the action by the one who started before is executed.

It seems that the guardian has the role of the owner in how to dispose of his chargeís assets; therefore, the guardian has the right to seek to bring benefits and make profits of the person under his guardianship, and is not restricted simply to stopping actions or things that may lead to loss of the like, such that if he has to decide between using the assets to try to make profit or to save them without losing anything; it is better for the guardian to trade with the assets of that person under their guardianship to make profit which is in his interest. However, if the action lacks interest for the person under guardianship, such as if there is no profit in that business or any other interest, he is not allowed to do it, even if it lacks any evil or harm.