The term apotropos (Heb. סֹופ ֹור ְט ֹופַא) for guardianship in Jewish law is derived from the Greek ἁπότροπος and means the "father" of minors or the "guardian" or "custodian" of another's affairs (see Maimonides to Mishnah, Bik. 1:5; Obadiah of Bertinoro, ad loc., and Git. 5:4). The need for an apotropos arises with persons who are unable to take care of their own affairs, such as minors and adults who are mentally defective or absentees (ibid.; Sha'arei Uziel, 1 (1944), 1, 2). Halakhic sources deal mainly with an apotropos charged with responsibility for the property of his ward, thus taking in activities that in modern times would be the function of the administrator of an estate (see *Succession) or executor of a *will, as well as the trusteeship of consecrated property (ibid.; pdr, 2:18, 25). In principle, however, there is nothing in the halakhah against appointing an apotropos also over the person of another (see pdr, 2:177 and 4:97, 108; Resp. Rosh 82:2; Sha'arei Uziel, 4, 1 (1944), 126, 173–6). The halakhic justification for the appointment of an apotropos over a person who has not expressed an opinion in the matter and is unable to do so owing to his being an absentee or a minor or incompetent, i.e., legally speaking, absent, is based on the principle that "a benefit may be bestowed on a person in his absence," since the function of an apotropos is to act solely in the interests of his ward (pdr 2:181).
Guardianship over Minors
the identity of the guardian
Some persons have the legal standing of guardians of others, even if not specifically appointed, such as a father with respect to his minor children (Resp. Rosh 87:1; 96:2; Isserles to Sh. Ar., Ḥm 285:8; Resp. Maharashdam, Ḥm 308; today the father usually is called natural guardian) or a person who undertakes responsibility for the care and welfare of minors who are dependent on him or who are members of his household, including small children and babes-in-arms (Git. 52a and Rashi, ibid.; Maggid Mishneh to Maim., Yad, Naḥalot 11:1; Resp. Rosh 87:1; Tur, Ḥm 290:31; Sh. Ar., Ḥm 290:24; pdr, 2:168–70, 172–3). Minors are boys under the age of 13 or girls under the age of 12 (pdr, 3:154, 156, 159). Guardianship over minors can also be established by an appointment by their fathers (Git., loc. cit.; Sh. Ar., Ḥm 290:1) or if they have not done so, by the court, by virtue of its authority as the "father of orphans" (Git. 37a; Resp. Rosh 85:5, 6; 87, 1; Sh. Ar., Ḥm 290:1–2).
A mother does not have the legal standing of guardian of her children, unless she is specifically appointed or stands in the same relationship toward them as a householder toward orphans formally part of his household, as mentioned above (Sh. Ar., Ḥm 290:1, 24; pdr 2:162, 173). The court is also obliged to appoint a guardian over them if their own father, or the guardian appointed by him, is incapable of taking proper care of the minors, or for any other reason that may be in the interests of the minors (bk 37a; Isserles to Sh. Ar., Ḥm 285:8; 290:5; pdr 2: 170, 171:4; 108).
Generally speaking, the court, if guided by the interests of the ward as the overriding consideration, is unrestricted in its choice of guardian. Therefore, the court will seek to appoint someone of personal integrity, who is competent in wordly affairs and able to handle the affairs of orphans (bm 70a; Ket. 109b; Tur and Beit Yosef to Tur, Ḥm 290:4; Sh. Ar., Ḥm, 2, 6). All other factors being equal, a relative of the ward is preferred over a stranger, he being presumed to take care of the minor's affairs better than a stranger (Beit Yosef and Darkhei Moshe 3 to Tur, Ḥm 285:13; Isserles to Sh. Ar., Ḥm 285:8, Sha'arei Uziel, 1 (1944), 108–9; Resp. Maharashdam, Ḥm 312). Talmudic law disapproved of entrusting the immovable property of a minor to the stewardship of a relative who was in line to inherit such property, lest at some future time, when it will be forgotten that the property came into his possession in his capacity as guardian only, he claim that it came to him by inheritance (i.e., by virtue of presumptive possession – see *Ḥazakah; bm 39a and Codes; Resp. Ribash 495), but modern systems of land registration, providing for registration of immovable property in the name of the real owner have rendered this fear groundless, and it is no longer considered a bar to the appointment of a relative as guardian (pdr, 2:364, 367–8; Sha'arei Uziel, ibid.).
Talmudic law was also opposed to appointing women as guardians, since they were not regarded as being sufficiently competent or experienced in business matters (Git. 52a and Rashi, ibid., ad loc. Resp. Ribash 495; Sh. Ar., Ḥm 290:2). However, some of the posekim express the opinion that there is no objection to the court appointing a woman who is experienced in business matters and accustomed to going about in public if the best interests of the minor would thereby be served (Baḥ to Ḥm 290:3; Resp. Ribash 495; Sh. Ar., Ḥm 285:9; Sha'arei Uziel 1 (1944), 109–11). All the authorities agree that the father may appoint a woman to serve as the guardian of his children (Sh. Ar., Ḥm 290:1), and a woman may also hold the position of guardian, without being specifically appointed thereto, with respect to members of her household dependent upon her (see above) and, if necessary, such a woman may be appointed guardian expressly by the court (Resp. Ribash 495). These provisions apply particularly to a minor's mother (pdr, 2:172, 173, 177; Resp. Maharashdam, Ḥm 236).
Two or more persons may be appointed to serve as co-guardians over a minor, or with a division of functions and powers between them, e.g., separate guardians may be appointed over his person and property respectively, as the best interests of the minor may dictate (Resp. Rosh 82:2). Similarly the court may appoint a guardian to serve together with the minor's father, in a case where the latter is considered incapable of fully discharging his duties toward the child (Resp. Rosh, 82:2; pdr, ibid., Sha'arei Uziel, 1 (1944), 126). In case of disagreement, the majority opinion may be followed and, when opinions are divided equally, the court will decide the issue (Resp. Maharashdam, Ḥm 434). A person must not be appointed guardian except with his own consent (Rashi, Git. 52b; Maggid Mishneh to Maim. Yad, Naḥalot 11:5).
powers and functions
The functions of a guardian are generally defined on his appointment, and he is to be guided by the overriding consideration of the best interests of his ward according to the circumstances. When entrusted with guardianship over the person of his ward, he has the duty of directing the latter's upbringing and education, determining his place of abode, and generally taking care of him (Resp. Rosh, 82:2; Resp. Maharashdam, eh 123; pdr, 2:177; 4:108; Sha'arei Uziel, 1 (1944), 126, 173–6). Responsibility for the property of the ward entails careful investment thereof by the guardian, i.e., "near to benefit and far from loss," so that the capital be preserved as far as possible and only the dividends used to defray the minor's current expenses, including his maintenance (Git., loc. cit.; Sh. Ar., Ḥm 290:8–11, 13). Since the guardian has authority only to act for the benefit of his ward, he is generally not entitled to represent the latter as a defendant in judicial proceedings, lest the claimant succeed and the debt be recovered from the minor's property. But when it is clear that the creditor is entitled to recover his debt from the property of the minor – e.g., when the testator had admitted such indebtedness, or if delaying legal proceedings until such time as the latter attains majority would be to his detriment, e.g., in the case of an interest-bearing debt or when the creditor is prepared to waive part of his rights if he will not have to wait with his claim until the minor's majority or in any other case where it is clearly to the benefit of the minor to be represented, as defendant in the proceedings, the guardian will have authority to represent him (Git. 52a and Rashi, ad loc.; Ar. 22a–b; Maim. Yad, Naḥalot 11:7; Malveh ve-Loveh 11:7; Sh. Ar., Ḥm 110; 290:12, Sha'arei Uziel, 1 (1944), 182–6; pdr, 3:155, 160).
All guardians, including those who have the legal standing of guardians (see above) and including the father of a minor, are subject to supervision by the court (Git. 52a and Codes; Sha'arei Uziel, 1:170; pdr, 2:170–1), and the court may set aside any step taken by the guardian as not being in the best interests of his ward and therefore in excess of his powers (pdr, 2:181). In this event the guardian may be held personally liable for any damage suffered by his ward as a result of his actions (bk 39a and Tos. thereto; and Codes), a threat he may avert only by seeking the prior approval of the court to his proposed course of action (Tosef., bb 8:4; Nov. Rashba to Git. 52a; Isserles to Sh. Ar., Ḥm 290:13; pdr, 2:180). At any rate, he has to obtain such approval when dealing with the minor's immovable property (Sh. Ar. and pdr, ibid.), or making gifts from the latter's property, or waiving any of his rights (Sh. Ar., Ḥm 235:26), including also the effecting of any *compromise on his behalf (Isserles to Ḥm 110:11).
Guardians are not entitled to any remuneration for their services unless specifically provided for in advance, such services being considered as the fulfillment of a religious duty (mitzvah) and therefore presumed to have been undertaken as a mitzvah and not for reward (pdr, 5:87–88). No act performed during the subsistence of the guardianship and affecting the rights of a minor is of any legal validity unless undertaken by, or with the approval of, his guardian (Ket. 70a, and Codes).
termination of guardianship
A guardianship terminates automatically when the ward attains his majority, since guardians are generally appointed only over minors (bm 39a; Maim. Yad, Naḥalot, 10:8; Sh. Ar., Ḥm 290:1, 26). If, however, the father has specifically appointed a guardian over his adult children, guardianship over them will come into force, but will terminate upon their demand (pdr, 3:154, 156–60). The guardian's appointment may also be terminated by his removal from office by the court, a step which will only be taken when deemed in the interests of the minor, e.g., if the guardian has dealt prejudicially with the property of his ward or if his conduct – even in regard to the handling of his own affairs – casts doubt on his personal integrity (Git. 52b, and Codes; pdr, 1:353, 359). It is pursuant to this power that the court may order the removal of a minor from his parents' house and appoint a guardian over his person or property (Beit Yosef to Ḥm 290:6; Isserles to Sh. Ar., Ḥm 285:8; Resp. Maharashdam, eh 123; pdr, 1:170, 171).
A guardianship may also be terminated on the strength of an application to the court by the guardian asking to be relieved of his appointment, since he cannot be compelled to serve against his will (Beit Yosef, to Tur, Ḥm 290:22). But explicit discharge by the court is required, for once undertaken the task of a guardian cannot be abandoned unilaterally (Tosef., bb 8:3; Sh. Ar., Ḥm 290:23). The court will not release the guardian from his duties until it has appointed another in his place, so as not to leave the minor or his property without supervision.
Upon the termination of his appointment, the guardian is required to hand over to his successor all the minor's property, to submit a report of his activities and, on the minor's demand, he will also have to take an oath that he has not retained any of the minor's assets (Git. 52a; Beit Yosef, Ḥm 290:22–23; Baḥ, ibid., 23 Sha'arei Uziel, 1:192–5). When the termination arises because the ward attains majority, he is entitled – even if he is a prodigal – to take possession of his property, unless there is an express instruction to the contrary from his father or the testator (bm 39a; Sh. Ar., Ḥm 290:26). Being a prodigal is not sufficient reason for subjecting him to guardianship (Resp. Ribash 20); only if his conduct stems from mental illness will a guardian be appointed over him (see above).
Guardianship over Adults
The court will appoint a guardian over an idiot who, because he is mentally defective or suffering from mental illness, is unable to manage his own affairs, a rule applying also to a *deaf-mute. To such a guardianship apply, generally, the laws of guardianship in respect to minors (Ket. 48a; Maim. Yad, Mekhirah, 29:4; Naḥalot, 10:8; Sh. Ar., Ḥm 235:20; Isserles to Ḥm 285:2; 290:27). Inability to take care of one's own affairs is also the basis for the court's authority to appoint a guardian (or custodian) over the property of an absentee person, i.e., one who has left his place of residence and whose whereabouts are unknown, if the court deem the appointment necessary for the preservation of his property (bm 39a–b; Maim. Yad, Naḥalot 7:4–10; Tur, Beit Josef and Baḥ, Ḥm 285; Sh. Ar., ibid.; Sha'arei Uziel, 1:13–23). In this case, unlike that of a minor, the court is not obliged to concern itself with seeking a suitable candidate for the appointment, but has authority to appoint the applicant's nominee, if suitable, as the appointment of a guardian over an adult of full capacity is not in fulfillment of a mitzvah (Maggid Mishneh to Maim. Yad, Naḥalot 7:5; Isserles to Sh. Ar., Ḥm 285:2). However, the court will not appoint a guardian over the assets of an absentee unless his absence is due to duress – e.g., if he is forced to abandon his assets while fleeing for his life. Therefore, a guardian will not be appointed over property voluntarily left, without supervision by its owner – since, had he wanted it, he could have made the appointment himself – except in respect of property which came to him after his departure and without his knowledge, e.g., by way of inheritance (bm 38a–b, 39a–b; Maim. Yad, Naḥalot, 7:4–8; Sh. Ar., Ḥm 285:1–4 and Isserles, ad loc., 4; Sha'arei Uziel, 1, 13–23).
In the State of Israel, guardianship is mainly governed by the following laws: The Women's Equal Rights Law, 1951; The Capacity and Guardianship Law, 1962; The Administrator General Ordinance, No. 37 of 1944 (as amended); and The Succession Law, 1965. The first of the abovementioned laws (sec. 3) provides that "both parents are the natural guardians of their children; where one parent dies, the other shall be the natural guardian" and further, in conformity with Jewish law, that the said provision does not affect the inherent power of the competent court to "deal with matters of guardianship over the persons or property of children with the interest of the children as the paramount consideration." In the absence of any express provision to the contrary in any of the abovementioned laws, halakhic law is applied.
[Ben-Zion (Benno) Schereschewsky]
The subject of guardianship has been discussed in scholarship as well as in recent rulings of the rabbinic and civil courts in Israel, both substantively and in terms of its connection to the legal system as a whole.
The Explanatory Note to the Capacity and Guardianship draft law (Bill No. 5721–1961, p. 178) emphasized the similarity between the Capacity and Guardianship Law and Jewish Law, stating that: "In substance, its proposals are largely in accordance with Jewish legal rules." In the Knesset debate over the Bill, Justice Minister Pinḥas Rosen explained "the duty and right to care for the needs of minors" (§15 of the Law) as follows:
From the point of view of the law, the essence of parenthood is the obligation to care for the children. As a practical matter, the parent-child relationship is primarily one that imposes obligations on the parents. This rule has been developed in a long line of Israeli court decisions, and is based upon the principles of Jewish Law.
Among the relevant sources of Jewish Law, the Justice Minister cited inter alia the talmudic passage (Kid. 29a, Rashi ad loc.) that enumerates the father's duties towards his son.
Section 67 of the Law provides that: "Where a person acts as a guardian, his duties and liabilities towards the ward shall be in accordance with the provisions of this chapter, even if he was not appointed or there was a defect in his appointment, or he has resigned or been dismissed or his guardianship has expired." In explaining this principle, the minister of justice cited the provision (Sh. Ar., Ḥm 290:24) stating that a householder who supports minor orphans at their request is bound to comply in all respects with the legal obligations incident to guardianship.
The law is also based on Jewish Law with respect to the institutions set up in order to deal with guardianship. The law authorized the courts to be assisted by the administrator general in discharging their supervisory role. As the minister of justice observed, this kind of office – the administrator general – is a well-known and venerable institution in Jewish Law and was given the sentimental title of "father of orphans." This role has its source in the regulation enacted by the Council of Lithuania in 1623 (Pinkas ha-Medinah bi-Medinat Lita (1925) 9, Enactment §37).
Scholarly literature also cites another institution which is regarded as a kind of guardianship – that of the trustee in public law. In a responsa concerning the prerogatives of the communal leaders to perform legal actions with respect to property, Rashba (Teshuvoti, §617) wrote: "The seven good citizens who are frequently mentioned are not seven people who excel in wisdom, wealth, or honor, but seven people chosen by the people and authorized to be administrators of the affairs of the town in general, who act as trustees for their brethren in their locality" (see also ibid.iii, §443).
Regarding the guardian's right to file an action in the ward's name, as discussed above, the rabbinical court ruled that a father whose divorced wife exploited monies earmarked for the benefit of their daughters (who were in her custody) in a manner that violated their agreement was entitled to sue the wife in the name of the daughters, by virtue of his standing as their natural guardian (pdr 17:260, 289).
In Israel Supreme Court Case Law
The provisions of Jewish Law regarding guardianship were the source of the Israel Supreme Court's ruling in Moberman (ca 604/77 Moberman v. Segal, 32 (3) pd 83). The Court was required to rule on the validity of an agreement concluded between an executor and a person designated as a beneficiary of the estate. The substance of the agreement involved the beneficiary's waiver of her rights under the will in return for a fixed monthly payment by the executor. The Court found a number of legal defects that tainted the agreement, such as the suspicion of undue influence having been exercised by the executor, which preceded the beneficiary's signing the agreement. Nonetheless, the Supreme Court (Justice Menachem Elon) did not regard this as the only grounds for invalidating the agreement. Under Jewish Law, any act or transaction involving estate assets but performed by the executor for his own personal needs requires the Court's approval prior to its completion. If the executor fails to attain advance judicial approval for the act, then "at least after the agreement was concluded, an examination must be conducted in order to ascertain the reasonability and fairness of the transaction from the perspective of the estate and its beneficiaries" (ibid. 97).
The judgment cites various views in Jewish Law regarding the question of whether a guardian can perform a transaction in the estate for his own personal gain. The view of Rabad (southern France, 12th century), cited in the Tur (Ḥm 290:15), is that "just as the guardian is permitted to deposit the monies [of the estate] in the hands of a trustee for business purposes, he is also permitted to take them for his own business purposes and take the profit that the other person would have taken, provided however that he gave notice to that effect to the court."
However, the Tur (14th century) had reservations regarding this view, stating: "I think it inappropriate for him to take them [the monies] for business purposes, because it may lead to tale-bearing" (ibid).
Rabad's opinion was endorsed by the majority of the halakhic authorities (see ibid. 99). In his opinion, Justice Elon quotes the comments of R. Joseph *Caro (Spain, 16th century) in Bet Yosef, related to the aforementioned view of the Tur: "As to the opinion of our Teacher of blessed memory that it is inappropriate for him to take them [the monies] for business purposes because it may lead to tale-bearing, this fear has no basis, inasmuch as he informed the court accordingly." Justice Elon went on to cite R. Moses *Isserles (Rema; Poland, 16th century – Sh. Ar., Ḥm 290:8).
Concluding its discussion of Jewish Law, the Court stated:
From all of the above it follows that, according to the [Tur] it is forbidden for the executor to personally conclude any transaction with the estate assets, even if he informed the court. This, despite the fact that the court's approval of the case would obviate the suspicion that the estate's interest would be prejudiced due to a possible conflict of interests on the executor's part. Nonetheless, the situation may still give rise to "tale-bearing," and as such "it is inappropriate." But according to the majority of authorities, among them R. Joseph Caro and the Rema [whose combined rulings comprise the Shulḥan Arukh] this suspicion is too remote to warrant consideration, and if the court approved the transaction concluded by the executor with the estate assets, even if for his own purposes, then he is permitted to do so (ibid.).
Relying on the above, Justice Elon ruled that the validity of the transaction between the executor and the estate under his management is contingent upon the court's prior approval. In the absence of such approval, the transaction is subject to the court's judicial review, which requires the court to "examine the nature and the essence of the transaction from the perspective of the respondent's best interests" (ibid., 101).
It is interesting to note some other comments made in the judgment (ibid., 97) regarding the interpretation of the law in accordance with Jewish Law: "I find support for this in the laws of estate management set out in the Jewish law. Section 150 of the Palestine Order in Council (the British Mandate legislation that predated Israeli Law) declared that, when there was no conflicting provision in the law itself, the Succession Law should be interpreted first and foremost in accordance with the sources of Jewish Law, thereby establishing its independence from §46 of the aforementioned Order in Council." Indeed, this was also the position of the authors of the Bill, who attested that the Bill was based inter alia "on Jewish Law, which is one of the central assets of our national culture, and we should renew it and continue it… We regard Jewish Law as being the main, but not the only or binding source … regarding the substance of the rules, we attempted wherever possible to anchor our proposal in Jewish Law" (from the introduction to the Explanatory Note to the Bill of the Succession Law, Ministry of Justice, Tammuz 5712 – 1952, 6–7).
Another case in which the Supreme Court ruled in accordance with the guardianship rules of Jewish Law was the Nagar case (st 1/81 Nagar v. Nagar, 38 (1) pd 365). Sitting as a Special Tribunal, the Supreme Court was required to decide a question of jurisdiction involving the respective powers of the civil court, on the one hand, and the rabbinical court, on the other, which has jurisdiction in matters of personal status, including guardianship (when both parties gave their consent). The civil court ruled that issue of determination of the minors' education, being disputed by the divorced couple, is within its exclusive jurisdiction. Accordingly, it nullified the ruling of the rabbinical court on this matter, notwithstanding the agreement between the parties, which conferred jurisdiction to the rabbinical court. The civil court relied on the argument that "In fact, halakhah does not recognize the institution of guardianship in matters concerning minors, within the meaning of the Legal Capacity and Guardianship Law. Guardianship under Jewish Law exists exclusively with respect to assets, and in relation to a fatherless orphan, and in an exceptional case when the father is alive but caused a depreciation of the minor's assets." Relying on this assumption, the District Court concluded that "in our case the rabbinical court did not adjudicate the question of education as a derivative of guardianship, but rather as a parental right – the father's right under the halakhah to fulfill the commandment of teaching Torah" (390–391 of judgment). As such, the matter does not fall within the jurisdiction of the rabbinical court.
The Supreme Court (Justice Elon) clarified that the concept of guardianship in Jewish jurisprudence is a general one, which encompasses both guardianship by appointment and natural guardianship, by virtue of parenthood:
The central principle in Jewish Law governing the laws of guardianship of children – of any child – derives from the basic rule that the court is the father of all orphans (Git. 37a; bk, 37a). This rule applies to every minor and child, and not just to orphans (Teshuvot, Radbaz, §§263, 360; Sha'arei Uziel, 1: §§4, 126). Both the parents and any person appointed as guardian of the children serve as quasi-representatives of the court, by virtue of its authority, and in accordance with its instructions, both in concern for the child's health and welfare, in the protection of his property and assets, all in accordance with the meta-principle of the child's best interests. A similar summary of these aspects is provided in the work of the late chief rabbi, and president of the Rabbinical Court, Rabbi Ben-Zion *Ouziel, (Sha'arei Uziel, pt. 1):
This is the basis and purpose of guardianship in Israel, which is conferred to the judges of Israel and their courts. The guardianship of the court is the source of the guardianship of the parents … and they are obligated to guarantee the well-being of their children after them, both in body and in soul, in wisdom and education, and their education in the commandments and decency and the fear of God … (ibid., p. 8) [ibid., pp. 396–97
The court further added that, in Jewish Law, guardianship is not limited to the duty of preserving the minor's assets, but includes the duty to raise and educate him:
This guardianship too [guardianship of an appointee even if not a parent] in Jewish law, is applicable both with respect to preserving the minor's assets and property and with respect to his education and studies … Its features are expounded upon in talmudic literature (Tosef., Zukermandel: Terumot 1:10; bb 8:14; Git. 52a), and the halakhah was determined accordingly – that the guardians must "provide the minors with a lulav and sukkah, ẓiẓit, shofar, Torah scroll, tefillin and mezuzot … they are appointed over them in order to educate them" (Maim. Yad, Nahalot, 11:9). This ruling was reaffirmed in the Shulḥan Arukh (Ḥm 290:15) – again, based on the consideration of "educating them," and I will not elaborate this point here. Summing up, I will quote a passage from the Talmudic Encyclopedia (s.v. "Ḥinukh"[Education], Vol. 16, 166f.): "A guardian appointed over minor children is obligated to educate them … it is incumbent upon the educator to educate them in the commandments, for he replaces the father." This matter is quite clear, requiring no further explanation, and as noted by R. Jehiel Michal *Epstein (Arukh ha-Shulḥan, Ḥm 290:30), "who will educate them if not the guardian?" (ibid.).
In view of all the above, the Supreme Court ruled that the duty of education imposed on the parents pursuant to section 15 of the Capacity and Guardianship Law 5722–1962, is the same duty that Jewish law imposes on the parents as guardians. This being the case, when the rabbinical court adjudicates the parents' duty of education vis-à-vis their children, it does so within the framework of the aforementioned law, and the matter is within its jurisdiction.
It should be noted that the term apotropos was occasionally used in the responsa literature as an appellation for a person who had undertaken to plead in the name of the person he was representing – now known as a "lawyer" (Resp. Mahar"h Or Zarua, §222; M. Elon, Ha-Mishpat ha-Ivri, 616–20).
[Menachem Elon (2nd ed.)]
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