Legal Capacity, Guardianship & Trusteeship in Kuwaiti Law

Concept and Types

Legal capacity is a person's eligibility to acquire rights, bear obligations, and conduct legal transactions. It has two fundamental types:

• Capacity of entitlement: Eligibility to acquire rights and bear obligations — attaches to every person at live birth
• Capacity of performance: Eligibility to conduct legal transactions independently — depends on age and mental soundness

Capacity of Entitlement and Performance

Capacity of Entitlement

Begins at birth and ends at death. An unborn child has limited entitlement capacity — eligible for inheritance and bequests, provided it is born alive.

Stages of Performance Capacity

Impediments to Capacity

An adult may be affected by impediments that limit capacity:

• Insanity: Complete loss of reason — destroys capacity; interdiction is mandatory
• Mental weakness: Diminished reason without complete loss — limited capacity; interdiction applies
• Prodigality: Squandering wealth irrationally — interdiction to preserve assets
• Gullibility: Being easily deceived in transactions — interdiction for protection

Interdiction is ordered by the competent court (Personal Status Court) upon application by an interested party or the Public Prosecution.

Guardianship over Person and Property

Guardianship over Person

Concerns the minor's personal affairs — education, upbringing, marriage, and medical treatment. Vested in the father, then paternal grandfather, then a court-appointed guardian.

Guardianship over Property

Concerns managing and disposing of the minor's assets. Vested in the father, then paternal grandfather. The guardian must manage the minor's property as a prudent person would.

• The guardian may not donate from the minor's property without court permission
• The minor's real property may only be sold with court authorization and for necessity
• An annual account of asset management must be submitted

Trusteeship over Minors

When no natural guardian exists, the court appoints a trustee (wasi):

• Chosen trustee: Named by the father before death in an official declaration
• Appointed trustee: Named by the court when no chosen trustee exists
• Trustee requirements: Full capacity, trustworthy, good character, able to manage the minor's affairs
• Removal: The court removes a trustee who breaches duties, proves disloyal, or becomes incapable

The trustee is subject to court supervision in all dealings with the minor's property.

Curatorship over Interdicted Persons

Curatorship applies to adults interdicted for an impediment to capacity:

• Appointment: The court appoints a curator, preferring relatives where possible
• Powers: Managing the interdicted person's assets in their best interest
• Prohibited transactions: Sale of real property or donations require court authorization
• Accounting: The curator submits annual accounts to the court
• Lifting interdiction: Interdiction is lifted when its cause ceases, by court order

Transactions of Persons with Limited Capacity

• Purely beneficial: Such as accepting a gift — valid and enforceable even from a person of limited capacity
• Purely detrimental: Such as making a donation — absolutely void with no cure
• Mixed transactions: Such as buying and selling — voidable in the interest of the person of limited capacity

A minor authorized to trade may conduct commercial transactions within the scope of the authorization.

Court's Protective Role

The Personal Status Court protects persons of limited capacity by:

• Supervising guardians, trustees, and curators
• Reviewing annual accounts for minors' and interdicted persons' assets
• Authorizing significant transactions (real property sales, settlements, pledges)
• Removing negligent guardians, trustees, or curators
• Appointing supervisors where needed

Frequently Asked Questions

What is the difference between guardianship and trusteeship?

Guardianship vests by operation of law in the father, then paternal grandfather, without court appointment. Trusteeship arises from the father's appointment (chosen trustee) or the court's appointment (appointed trustee) when no natural guardian exists.

Can a mother be appointed trustee over her children?

Yes, the court may appoint the mother as trustee over her minor children upon the father's death and absence of a grandfather — indeed she has priority if she meets the requirements.

When is interdiction lifted?

Interdiction is lifted when its cause ceases — such as recovery from insanity or reform of prodigality — by order of the competent court upon application by the interdicted person or interested parties.