Who Is a Legal Guardian?
2024-03-20
Under the Civil Code, people who lack the capacity to handle their financial affairs, or to carry out non-financial matters on their own, must have someone to assist them in these matters. For example, a minor is someone who has not reached the age of puberty, or a person of unsound judgment (safih) who has not reached the age of maturity, as well as someone insane or of unsound mind — all of whom are legally incapacitated and must act in their financial and non-financial affairs together with another person. Under the Civil Code, this person is, in the first instance, the father, who is considered their natural guardian (vali). If the father has died, this duty falls to the paternal grandfather, and if he too has died, then if the father or paternal grandfather has, by will, designated someone to manage their affairs, that person is called an executor (vasi). But if no executor was named in the will, the court appoints someone called a legal guardian (qeyyem) to look after and represent the incapacitated person.
Legal requirements for a guardian
One important requirement for guardianship is having the necessary capability and capacity, which can be considered a positive qualification, and given the need for competence, ability, and the power to perform legal acts and properly manage the incapacitated person's assets, this requirement is essential in a guardian. The guardian must strive to raise and improve the incapacitated person's situation and must keep their best interests in mind in handling their affairs. The need for the ability to distinguish what serves the person's interest from what is harmful is important in a guardian. Of course, by "capability" we do not mean physical strength, but the capacity to perform legal acts wisely and manage the incapacitated person's life affairs. The second positive quality required of a guardian is trustworthiness. Under the law, as soon as a lack of trustworthiness on the guardian's part is proven, they are removed from this role. The third positive quality of a guardian is that they must have reached puberty and maturity. People who themselves require a guardian cannot be appointed to the role of guardian. The fourth requirement for a guardian is being Muslim. In Islamic law, guardianship of a non-Muslim over a Muslim is not accepted. Therefore, whenever the incapacitated person is Muslim, a non-Muslim guardian cannot be appointed for them.
Conditions for removing a guardian
A guardian is appointed to serve the incapacitated person's best interests, so as soon as the guardian's conduct departs from that standard, the court moves to replace and change them. For example, as soon as it becomes clear that the guardian lacks trustworthiness, or once had it but has since lost it, they are removed from guardianship. Whenever a guardian commits one of the crimes of theft, breach of trust, embezzlement, sexual assault, offenses against public decency, crimes against children, or bankruptcy, or if for any reason the guardian is sentenced to imprisonment and becomes unable to manage the incapacitated person's affairs, or if the guardian's incompetence or inability to manage the incapacitated person's assets becomes apparent, or if a woman was appointed as guardian without her husband's permission, she is removed. In addition, the guardian must submit an account of their stewardship to the prosecutor or their representative at least once a year. If they fail to fulfill this duty, they are removed. Of course, if the guardian submitted the account before another person was appointed in their place, or if it is shown that the delay in submitting the account was due to a valid excuse, that same person may be reappointed as guardian. Another ground for removing a guardian is if they deliberately and in bad faith omit some of the incapacitated person's assets from the prepared inventory of assets. Engaging in any of the above actions will certainly result in the guardian's removal.