Ruling on the wealth of an Alzheimer’s patient who entrusted it to the care of someone else before she became sick

Question

Praise be to Allah.

Firstly:

Alzheimer’s
disease is the most widespread form of dementia in the elderly. Dementia is
a brain disorder that severely affects an elderly person’s ability to carry
out his daily activities.

End quote from
Mawsoo‘at al-Malik ‘Abdullah al-‘Arabiyyah li’l-Muhtawa as-Sihhi.

Hence
Alzheimer’s is what is known to the fuqaha’ and in Arab societies as al-kharaf
(lit. senility or feeble-mindedness), which in terms of shar‘i rulings comes
under the same ruling as insanity.

Taqiy ad-Deen
as-Subki (may Allah have mercy on him) said:

With regard to
the waiving of accountability from one who is affected by senility, who has
lost his mental faculties, there is no doubt concerning it.

End quote from
Ibraaz al-Hikam min Hadith Raf‘ al-Qalam (p. 98).

He also said:
The ruling on one who is senile and one who is insane is the same, and there
is no difference between them.

End quote from
Ibraaz al-Hikam min Hadith Raf‘ al-Qalam (p. 99).

Secondly:

With regard to
the one who has gone insane and lost his mind:

1.
So long as he is still alive, his ownership of his wealth
remains as is, so it is not permissible to divide his wealth among his heirs
or to spend it on anything that is not in his interests. This wealth should
be looked after until he recovers, or until he dies, whereupon it is to be
divided among his heirs.

2.
He should be prevented from disposing of his wealth and not
be allowed to spend it (in other words, she should be declared legally
incompetent).

Allah, may He be
exalted, says (interpretation of the meaning):

“And
do not give the weak-minded your property, which Allah has made a means of
sustenance for you, but provide for them with it and clothe them and speak
to them words of appropriate kindness”

[an-Nisa’ 4:5].

Ibn Katheer (may
Allah have mercy on him) said:

Here Allah, may
He be glorified and exalted, forbids allowing the weak-minded to dispose of
the wealth that Allah has made a means of sustenance for people, that is,
something on which their livelihood through trade or otherwise is based.

Hence the
weak-minded are to be declared legally incompetent and prevented from
disposing of their wealth. They fall into several categories, one of which
is the minor child, who should be declared legally incompetent and prevented
from disposing of his wealth, because the minor cannot express himself.
Other such categories include the insane, and those who mishandle their
wealth due to lack of reasoning or lack of religious commitment.

End quote from
Tafseer al-Qur’an al-‘Azeem (3/350)

Ibn Qudaamah
(may Allah have mercy on him) said:

Ahmad said: The
old man who has lost his mind should be declared legally incompetent. In
other words, if he has grown old and lost his mind, he should be prevented
from disposing of his wealth, as in the case of one who is insane, because
he is no longer able to handle his wealth in such a way as to serve his
interests and preserve the wealth. Hence he is like the minor child or one
who is weak-minded.

End quote from
al-Mughni (6/610)

Secondly:

In the case of
your husband’s mother, what you should do is refer her case to the shar‘i
court, if such is available in your country, so that they can examine her
case and appoint someone to be in charge of her wealth. Because deciding who
deserves to be declared legally incompetent is a matter that is subject to
ijtihad, it should be referred to the judge to decide concerning it.

It says in
Kashshaaf al-Qinaa‘ ‘an al-Iqnaa‘ (8/394), which is a Hanbali book:

No one should
declare them legally incompetent (and thus prevent them from having control
of their wealth) – referring to one who is weak-minded or became insane
after having reached adulthood and having been of sound mind – except the
judge. End quote.

Shaykh Ibn
‘Uthaymeen (may Allah have mercy on him) was asked:

I have an
elderly father who has reached the stage of senility. He has a large piece
of land, and we want to subdivide it and sell it as lots for residential
construction, but some brothers said that so long as your father is still
alive, you have no right to dispose of that property. Is it permissible for
me to take power of attorney from the court in order to look after his
interests?

He (may Allah
have mercy on him) replied: If the way he behaves and handles his wealth is
not proper, then you have no alternative but to refer the matter to the
court so that they can decide concerning that.

End quote from
Fataawa Noor ‘ala ad-Darb (2/16)

If there is no
shar‘i court, then in this case her sons should get together and choose
someone to take care of her wealth and preserve it for her, for
guardianship/power of attorney is only for the closest of people to the one
who has been declared legally incompetent, and the one who is best in
serving his interests.

Ar-Rooyaani
narrated from ash-Shaafa‘i that if the judge declares a weak-minded adult to
be legally incompetent (and thus incapable of handling his wealth properly,
it is recommended for him to refer his case to his father or grandfather, or
if that is not possible, then to other male relatives on the father’s side,
because they will be more compassionate towards him.

End quote from
Mughni al-Muhtaaj (2/222).

Shaykh Ibn
‘Uthaymeen (may Allah have mercy on him) said:

Guardianship/power of attorney should be granted to the closest of people,
even if it is his mother, if she is a woman of mature thinking, because the
aim is to protect this minor child or insane person or weak-minded person.
Therefore, if there is someone among his relatives who could take care of
him, then it is more appropriate to give this task to him rather than anyone
else.

End quote from
ash-Sharh al-Mumti‘ (9/306)

If any dispute
arises among the children (of that man), then they should go to the fatwa
council or similar body in their city, who can tell them what they should
do.

If a guardian is
appointed to look after her wealth, whether that is her son to whom you are
married, or another son, then he must try his best to look after her wealth
and not spend it except in her best interests and on things that will
benefit her, such as medical treatment, maintenance and so on. Spending on
her maintenance includes the wages of a servant, within reason, if she needs
that and there is no one else who can serve her.

It says in
ash-Sharh as-Sagheer ‘ala Aqrab al-Masaalik ila Madhhab al-Imam Maalik
(3/393-394):

The guardian
must dispose of the wealth of the one who has been declared legally
incompetent in a manner that best serves the interests of that person, now
or in the future. End quote.

In Manaar as-Sabeel
fi Sharh ad-Daleel (1/388), which is a book of Hanbali fiqh, it says:

It is haraam for
the guardian of a minor, one who is insane or one who is weak-minded to
dispose of their wealth except in ways that preserve that wealth or serve
their interests, because Allah, may He be exalted, says (interpretation of
the meaning): “And
do not approach the orphan’s property except in a way that is best”
[al-An‘aam 6:152].
This also applies to the weak-minded and the insane. End quote.

See also fatwa
no. 59866.

It should also
be noted that the guardian of one who has been declared legally incompetent
must pay zakaah on that person’s wealth, if it reaches the nisaab (minimum
threshold at which zakaah becomes due).

See the answer
to question no. 75307.

And Allah knows
best.