Fatwa ID: 07555

 

 

Answered by Alimah Saleha Bukhari Islam

 

Question:

 

My father had a stroke 2.5 years ago affecting his speech a great deal. He can no longer speak even a basic sentence but can say a few words here and there.

A few weeks before the stroke, my father had discussed about selling a property with his cousin who looks after the property abroad for the purpose of Sadaqah Jaariyah. (This property belongs to my father alone). They had finished their discussion with ‘let Ramadhan be over’ as not to evict tenants in the middle of Ramadhan.

Shortly after this conversation about 10 days later in Ramadhan, my father suffered a major stroke affecting his mobility and speech as mentioned above. At this moment in time, he can gesture and get his point across and my mother understands what he’s trying to say 95% of the time. He prays his Salahs and is aware when it’s Ramadhan, etc.

At present my father is under a Deputy (my mother and sister) from the Court of Protection. This means by law he’s incapacitated to make decisions regarding his money, health and welfare. He no longer signs any forms or accounts.

 

Bearing this in mind, recently the talk of property etc was happening on the phone and my dad overheard the conversation my mother was having with her brother. Concluding the call, my father was interested in their conservation, hence my mum told him about it.

 

In the same conversation, my mum reminded him of his own property which he clearly acknowledged. She then asked him if he remembers the conversation he had with his cousin regarding selling and putting that money for Sadaqah Jaariya. He understood and gestured with his hands to ‘finish the matter’. (Note that my father used to use the word “Khatam” in Urdu in his healthy days and make the same hand gesture).

 

A few hours later he called my mum from the kitchen again and reiterated khatam, khatam a few times.

 

My question is do we consider his gesturing with his hands as his permission so that the property can be sold and the money put in use solely for the purpose of Sadaqah Jaariyah projects? Is my father still considered as an Aaqil?

 

We will not be using any of the money for ourselves as Alhamdulillah my father by the grace of Allah was blessed and has gifted my mother and my sisters a lot already in his lifetime.

 

In the name of Allah, the Most Gracious, the Most Merciful

 

 

Answer:

 

We are very sorry to hear about your father’s poor health, may Allah make it easy. The decision on someone’s mental capacity is typically made by healthcare professionals, such as doctors or psychologists, based on a specific criteria. They assess whether an individual can understand, retain, and weigh relevant information to make decisions or not.

 

As you mentioned, since your father is under a Deputyship (of your mother and sister) issued by the Court of Protection, this implies he’s incapacitated to make decisions regarding his property, wealth, health and welfare. Therefore, the decision lies with your mother and sister as his legal Deputies. They have the legal right and capacity to act on his behalf, and so if they deem fit then they may execute the decision on his behalf. In other words, if they believe it to be your father’s wish and in his best interest then they may sell the property and invest in Sadaqa Jariyah projects on his behalf.  

 

If this is not legally possible now due to the complication in your father’s health, your family may hold off doing so. Instead, they can make a firm intention to do so on behalf of your father in the future in the event of his demise and in sha Allah it will be accepted as a sadaqah from him.

 

 

 

Only Allah (عز و جل) knows best.

Written by Alimah Saleha Bukhari Islam

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 

 

 

 

 

 

References:

 

  إذا [كاتب] (٥) أحدهما يُخيَّر الآخر إن شاء أمضي الكتابة، وإن شاء فسخ بخلاف المريض، والمسافر متصل بقوله: «إلا أن يكون الموكل مريضا … لأن الجواب غير مستحق عليهما هنالك» (٦)، أي: لعجز المسافر بالغيبة، وعجز المريض بالمرض.

ص168 – كتاب النهاية في شرح الهداية السغناقي – في توكيل المريض – المكتبة الشاملة

 

 

  فَالْوِلَايَةُ فِي الْأَصْلِ نَوْعَانِ: نَوْعٌ يَثْبُتُ بِتَوْلِيَةِ الْمَالِكِ، وَنَوْعٌ يَثْبُتُ شَرْعًا لَا بِتَوْلِيَةِ الْمَالِكِ، أَمَّا الْأَوَّلُ فَهُوَ وِلَايَةُ الْوَكِيلِ فَيَنْفُذُ تَصَرُّفُ الْوَكِيلِ، وَإِنْ لَمْ يَكُنْ الْمَحَلُّ مَمْلُوكًا لَهُ لِوُجُودِ الْوِلَايَةِ الْمُسْتَفَادَةِ مِنْ الْمُوَكِّلِ.

 

 

ص152 – كتاب بدائع الصنائع في ترتيب الشرائع – فصل في الشرط الذي يرجع إلى المعقود عليه – المكتبة الشاملة