Appointed guardian (qayyim)

In the lexicon a qayyim is one who takes charge of a matter with care and protection. In the jurists' terms he is a person the judge appoints to carry out the bequest of someone who named no executor, to manage the affairs of minors, the insane and the spendthrift from among the judge's wards, and to guard the property of absent persons who have no agent ¹. The Malikis call him the judge's deputy or the judge's appointee ¹.

An executor (wasi) is one whom the father, the grandfather or the judge charges with acting after their death in what they could do in their lifetime, so the executor is the broader term ¹. An agent (wakil) is appointed by the person while living; a qayyim is appointed by the judge ¹.

The qayyim's authority comes after that of the father, the grandfather and their executors. The Hanafis extend this to any executor of their executor; the Malikis hold that the guardian may not be barred from appointing; the Shafi'is and Hanbalis, in the preferred view, allow it if the guardian permits it ^{1 2}. Some cite a report that the ruler is guardian of one who has no guardian, which al-Tirmidhi gives from Abu Musa and calls good ². The reason given is that the father's and grandfather's care arises from kinship, while the judge's authority rests on the presumption of knowledge and integrity, and so it comes later ².

In his dealings the qayyim has the powers of a deceased person's executor, with some exceptions on which the Hanafis differ from others ². Most jurists forbid him to buy for himself or to sell to someone whose testimony in his favour would not be accepted. The Hanafis allow it where the ward's clear benefit is shown, according to Abu Hanifa; the Malikis forbid an executor to buy from the estate at all; the Shafi'is and Hanbalis forbid selling the ward's property to himself, but the Hanbalis allow the father to do so ².

If the judge limits the qayyim's authority to a particular matter, he may not exceed it, unlike the executor of an original guardian. Most jurists hold that an executor may not exceed what the one who appointed him allowed, since his power comes from that permission ^{2 3}. The Mukhtar text says the qayyim may not hire out a minor for work; Ibn Abidin excepts placing a minor with a trade, while the Hanafi manual on executors allows hiring out the orphan's person and estates ³.

The judge may not dismiss the executor of an original guardian once he is too weak for the task, but may add someone to him; the judge may dismiss the qayyim, since the judge appointed him ³. The judge may forbid the qayyim certain acts, which the Hanafis do not allow him to do to a deceased person's executor; the schools agree on forbidding what has been forbidden to both ³. The qayyim may take receipt of property only on the judge's fresh authorisation after his appointment, unlike the original executor ³. Naming a successor after death differs: the Hanafis hold that a qayyim's appointee does not become an executor, while the majority hold that an executor's executor is valid only if the original guardian authorised it in his lifetime ³.