The elder brother is not a guardian, nor is the paternal uncle, nor is the mother a guardian. Thus, guardianship passes directly from the father—if he has appointed no executor—to the judge. There is undoubtedly room for reconsideration in this, for the people most entitled to care for them are their grandfather, elder brother, or paternal uncle, and they are the most compassionate toward them. So how can guardianship be assigned to someone distant?

However, according to the madhhab, the procedure is for the grandfather to go to the judge and request to be appointed their guardian. If the judge sees that he is qualified for guardianship, he appoints him. Indeed, the judge himself wishes that someone would come and relieve him of the burden of their affairs.

This is the view adopted by the author—may Allah have mercy on him—and it is the position of the madhhab. The second view on this issue is that guardianship belongs to the person most entitled to it, even if that is the mother, provided she is of sound judgment. For the purpose is to protect this young child, or to protect the insane person or the incompetent person. If one of his relatives can provide such protection, he is more entitled to it than anyone else. This is the correct view, if Allah wills. Accordingly, the grandfather or the father is guardian over his son’s children; the full brother is guardian over his younger brother; and, in the absence of agnatic relatives, the mother is guardian over her son. However, if it is the case that his relatives lack compassion, love, and tenderness, then recourse is made to the judge, who appoints whoever is most suitable.

“A guardian may not dispose of the property of any of them except in the manner most beneficial to him. He must engage in trade on his behalf without charge, and may invest his property in a profit-sharing partnership for a portion of the profit. A poor guardian may consume from the property of his ward whichever is less: his own maintenance or his wage, without charge.”

His statement, “A guardian may not dispose of the property of any of them except in the manner most beneficial to him,” is based on the saying of Allah, Exalted is He: “And do not approach the property of the orphan except in the best manner.” [al-An‘am: 152]

Moreover, since this guardian acts on behalf of another, he is obliged to pursue what is most beneficial. This applies to both religious and worldly forms of guardianship: a guardian may not act on behalf of another except in the best manner. Hence the Prophet ﷺ said: “If one of you leads...”