Guardianship for Incapacitated Adults

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Questions and Answers

What is the primary concern of guardianship over a person?

Property protection and management

Age of majority determination

Financial management and investment

Education, medical care, and marriage (correct)

According to Shari'ah, who is the natural guardian of a child's person and property?

Father (correct)

Executor appointed by the judge

Mother

Grandfather

Who derives authority from Shari'ah to enter into a contract on behalf of another?

A person with complete capacity of performance

A party to a contract

A guardian (correct)

An agent

What is a necessary condition for a guardian to be appointed in Islamic law?

The guardian must be appointed by the court. Signup and view all the answers

What is the term for a person who authorises another to conclude a certain transaction on their behalf?

Wakalah (Agency) Signup and view all the answers

Who can release themselves from guardianship?

None of the above Signup and view all the answers

What is the main difference between a guardian and an agent in Islamic law?

A guardian is appointed by the court, while an agent is appointed by the principal. Signup and view all the answers

What is the legal consequence if a guardian violates the conditions of guardianship?

The guardian may be removed by the court. Signup and view all the answers

When does guardianship over a minor typically end?

At the age of majority Signup and view all the answers

Who are also in need of guardianship?

Minors, lunatics, and idiots Signup and view all the answers

What is the purpose of wakalah (agency) in Islamic law?

To allow individuals to perform transactions on behalf of others. Signup and view all the answers

What happens to the guardianship of a lunatic or an idiot who reaches the age of majority?

It remains under the same guardian Signup and view all the answers

What is the characteristic of a wakalah (agency) contract in Islamic law?

It is a non-binding contract. Signup and view all the answers

Why may a person need to appoint an agent in Islamic law?

Because they need specialized knowledge and expertise. Signup and view all the answers

What is a key difference between a guardian and an agent in terms of payment?

A guardian is not paid, while an agent is entitled to a commission. Signup and view all the answers

What is a type of agency mentioned in the text?

Political agency. Signup and view all the answers

What happens when a person becomes prodigal after attaining the age of majority?

A judge becomes the guardian Signup and view all the answers

What is a condition for a guardian to have?

Complete capacity to perform Signup and view all the answers

What is a right of a guardian?

To accept a gift or a will for the ward Signup and view all the answers

What is a responsibility of a guardian?

To protect the interest of the ward Signup and view all the answers

What is a characteristic of a guardian?

Pious and practicing Muslim Signup and view all the answers

Who has the power to declare a person as prodigal?

The court Signup and view all the answers

What is a limitation of a guardian's authority?

Using their authority to cause loss to the ward's property Signup and view all the answers

What is not a reason for guardianship?

Bankruptcy Signup and view all the answers

Study Notes

Guardianship and Agency

A guardian cannot enter into a contract with the ward, buy or rent their property, or sell/rent their own property to the ward.
If a guardian violates these conditions, the judge may remove them or appoint a co-guardian.

Agency (Wakalah)

Literally means "protection delegation or authorization and representation"
Legally, it's a contract where a competent person authorizes another competent person to perform a specific legal action on their behalf
The agent (wakil) establishes contractual and commercial relations between the principal (asil/muwakkil) and a third party, and may receive a commission
The contract of wakalah is non-binding

Necessity of Agency

People need agents due to:
- Lack of specialized knowledge or expertise
- Distance or travel constraints
- Time constraints or inability to personally attend to business transactions
- Political agency (wakil rakyat) where collective decision-making is impossible

Comparisons Between Guardianship and Agency

In guardianship, one party lacks legal capacity, while in agency, both parties have legal capacity
A guardian is appointed by law, while an agent is appointed by the principal
A guardian and ward should have the same religion, but a Muslim principal may appoint a non-Muslim agent
A guardian is usually not paid, while an agent is entitled to their commission

Authorisation/Delegation of Authority

A party to a contract must have complete capacity of performance and authority to enter into the contract
Authority can be derived from Shari'ah or an agreement
In guardianship, authorization is granted by Shari'ah, while in agency, the principal grants authority to the agent

Guardianship (Al-Welayah)

Literally means "help and assistance"
Technically, it's an authority granted by Shari'ah to a person over another's person and property
Two types of guardianship:
- Guardianship over a person: concerned with education, medical care, and marriage
- Guardianship over property: concerned with protection, management, and investment of the ward's property

Who Needs Guardianship?

A minor needs guardianship from birth until reaching the age of majority
A father is the natural guardian of his child's person and property
A lunatic, idiot, or prodigal person needs guardianship
A judge or appointed guardian assumes guardianship over a person who becomes lunatic or idiot after reaching the age of majority

Conditions for Guardianship

A guardian must:
- Have complete capacity to perform
- Be a Muslim (a non-Muslim cannot be the guardian for a Muslim ward)
- Be just and pious
- Have authority and decision-making capacity
- Protect, manage, and invest the ward's property
- Spend on the ward's maintenance with moderation
- Ensure the ward's interests are protected in financial dispositions

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Description

This quiz covers the laws and regulations regarding guardianship for individuals who become incapacitated or prodigal after reaching the age of majority. Learn about the role of judges and guardians in such cases.