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

                My husband’s mother is elderly. Some time ago she gave me a purse of hers, and asked me to keep it for her. Now she is becoming very old and is suffering from Alzheimer’s, which means that she forgets a lot all the time. For that reason I found that I had no choice but to open the purse to find out what was in it, and I found some money and some gold that belongs to her. 

My husband and I have decided to hire a servant for her to look after her. Is it permissible for me to use her cash and gold for that purpose?
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.