Book 4 — Legal Capacity and Representation

There are two types of capacity: legal capacity and functional capacity.

Legal capacity entails the acquisition of rights and the assumption of liabilities, as
defined by the law, that are indivisible from a person during his lifetime and of which he
cannot be deprived.

Functional capacity entails the exercise of personal and financial rights and the power of
disposal, with the law defining the conditions governing their acquisition and causes of
their limitation or deprivation.

The age of legal majority is eighteen complete Gregorian years.

Any person that comes of legal age and presents none of the causes which limit or
deprive him of his capacity shall be considered fully able to exercise his rights and to
assume his obligations.

Any person devoid of or lacking in capacity shall be subjected, according to the
circumstances, to the provisions governing legal tutelage, testamentary guardianship or
courtappointed guardianship, in accordance with the rules set forth in this Moudawana.

Chapter II: Of Grounds for Al-Hajr (Placing Under Guardianship due to Incapacity)
and Procedures to Establish it

Section 1: Of the Grounds for Al-Hajr

The grounds for placing a person under guardianship fall into one of two categories: the
first impairs a person’s capacity while the other deprives the person of capacity.

Those considered as not fully capable of legally exercising their rights:
1. a young person who has attained the age of discernment but not yet reached the age
of legal majority;

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. a prodigal person;
3. a demented person.

A discerning young person is one who has completed twelve full Gregorian years.

A prodigal person is one who squanders his money on trifles or on things reasonable
people consider futile, in a way which inflicts harm on himself or on his family.

A demented person is a person suffering from a mental handicap that prevents him from
controlling his thoughts and actions.

Those considered as incapable of exercising their rights:
First, a young person that has not attained the age of discernment;
Second, an insane person and a person who has lost his mind.
A person who loses his mind in an intermittent way shall be considered as being fully
capable during his intervals of lucidity. Voluntary loss of mind shall not dispense one
from responsibility.

Guardianship over a minor shall terminate once the minor comes of legal age, unless
she or he is placed under guardianship anew due to the existence of a cause warranting
it.

A person placed under guardianship due to a mental handicap or prodigality may
request the court to remove it if she or he demonstrates signs of majority, and his or her
legal representative may do likewise.

A minor who has attained the age of sixteen may request the court to declare him or her
as having reached legal majority. His or her legal representative may also request the
court to declare the majority of the minor who has attained the aforementioned age, if
the minor demonstrates signs of majority.

Declaring the majority of a minor results in the acquisition by the latter of his property, as
well as full capacity to manage and dispose of it, and the exercise of non-monetary
rights shall remain subject to the legal texts governing them.

In all cases, legal majority may not be conferred on any of the above persons unless it
has been proven to the court following all necessary legal procedures.

If the legal representative considers that the ward, before coming of legal age, has been

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afflicted with a mental handicap or has become prodigal, the representative shall refer
the matter to the court, which will examine whether guardianship should continue, and
the court may resort to all legal means of proof.

Section 2: Of the Procedures to Establish al-Hajr and to Remove it

Demented, prodigal, and insane persons shall be placed under guardianship by a ruling
from the time their state is established, and guardianship shall be removed as of the
date of the extinction of its causes, in accordance with the provisions of this present
Moudawana.

A ruling placing a person under guardianship or removing it shall be issued by the court
at the request of the person concerned, the Public Prosecutor’s Office, or any person
with a stake in the matter.

In upholding the guardianship or removing it, the court shall rely on medical expertise as
well as all other legal means of proof.

A ruling placing a person under guardianship or removing it shall be publicized by all
means deemed appropriate by the court.

Chapter III: Of the Acts of the Person Placed Under Guardianship

Section 1: Of the Acts of a Person Devoid of Capacity

The acts of a person devoid of capacity are null and without effect.

Section 2: Of the Acts of a Person Not Fully Capable

The acts of a discerning young person are governed by the following provisions:
1. They are valid if they are fully beneficial to him or her;
2. They are null if they are harmful to him or her;
3. Their effects shall be subject to the permission of his or her legal representative, if the
acts are neither clearly beneficial nor harmful, and the legal representative shall, within
the limits of the authority vested in him, safeguard the interests of the ward.

A discerning young person may receive a portion of his property to manage on a
probationary basis. Permission shall be granted by the legal tutor, or by decision of the

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Guardianship Judge on the basis of a request initiated by the testamentary guardian, the
court-appointed guardian or the young person concerned.

The Guardianship Judge may revoke the decision granting this permission at the
request of the testamentary guardian, the court-appointed guardian, the Public
Prosecutor’s Office, or on its own motion, if it is established that there is
mismanagement by the person concerned.

A person under guardianship is deemed fully capable of acts he or she has been
authorized to perform, as well as to engage in legal proceedings concerning them.

The legal tutor may withdraw the permission granted the young discerning person if
there are grounds for it.

The acts of prodigal and demented persons shall be subject to the provisions of
preceding Article 225.

Title Two: Of Legal Representation

Chapter I: General Provisions

Legal representation of a minor shall be exercised by the legal tutor, the testamentary
guardian or a court-appointed guardian.

Legal representative in this code means:
1. The legal tutor: the father, the mother, and the judge;
2. The testamentary guardian: designated in a testament by the father or mother;
3. The court-appointed guardian.

Legal representation is exercised by:
1. A father of legal majority;
2. A mother of legal majority, in the absence of the father or when the father is deprived
of his capacity;
3. A testamentary guardian designated by the father;
4. A testamentary guardian designated by the mother;
5. The judge;
6. The court-appointed guardian.

In the event the minor is under the effective protection of a person or an institution, that

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person or institution shall be considered as the legal representative of the minor in his or
personal affairs until the judge appoints an official guardian for the minor.

A legal representative shall act as the legal tutor of a minor and his or her property until
the minor has attained legal majority. He or she shall act in the same way regarding an
insane person until the guardianship is removed by court decision. Legal representation
of prodigal and demented persons shall be limited to their property until guardianship is
removed by court decision.

The court may appoint a court-appointed guardian, in addition to the testamentary
guardian, in order to assist him or her or to manage some of the minor’s financial
interests.

Chapter II: Of the Functions and Responsibilities of the Legal Representative

The legal representative shall manage the personal affairs of the ward, including
religious orientation, training, and preparation for life, and shall also assume the daily
management of the ward’s property.

The legal representative is required to notify the Guardianship Judge of the existence of
money, documents, jewellery, and any valuable movable property and is for failure to do
so, and on the basis of a judicial order the money and movable property shall be
deposited in an account for the minor at a public institution for it to be preserved.
In the exercise of these responsibilities, the legal representative shall be subjected to
judicial supervision, in accordance with the provisions of the following articles.

Section 1: Of the Legal Tutor
§ 1. The Father

By law, the father is the tutor of his children unless he is disqualified by judicial order.
The mother may manage urgent affairs of her children in the event the father is
prevented from doing so.

The father may designate a testamentary guardian for his child or an unborn child and is
entitled to revoke any such designation.
The testament shall be submitted to a judge for verification and approval upon the death
of the father.

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§ 2. The Mother

The conditions under which the mother may assume tutelage over her children are:
1. She must have reached the age of legal majority;
2. Non-presence of the father due to his death, absence, or incapacity.
The mother may designate a testamentary guardian for her child, and is entitled to
revoke any such designation.

The testament shall be submitted to a judge for verification and approval upon the death
of the mother. In the event of co-existence of a testamentary guardian appointed by the
father and the mother, the testamentary guardian’s responsibility shall be limited to the
supervision of the mother’s management of the child’s affairs and, if necessary,
notification of the court.

The mother and any benefactor who donates money to the ward may stipulate that he or
she assume legal representation in the management and investment of the money
donated, and this condition shall be enforceable.

§ 3. Provisions Common to Tutelage by both Parents

The tutor shall not be subjected to a priori court supervision in the management of the
ward’s money, and no legal representation shall be opened unless the value of the
ward’s property exceeds two hundred thousand (200,000) dirhams. However, the
Guardianship Judge may order legal representation for amounts lower than the
aforementioned figure if he deems it to be in the interests of the ward. This amount may
be increased by administrative regulation.

If the value of the ward’s property exceeds two hundred thousand (200,000) dirhams
during its management, the tutor shall notify the judge so that legal representation may
be opened. The ward or his or her mother may also petition the judge to this effect.

At the conclusion of the tutelage, and in the existence of legal representation, the tutor
shall notify the Guardianship Judge of the status of the ward’s property in a detailed
recapitulatory report submitted for approval.

In all cases where legal representation is opened, the tutor shall submit an annual report
detailing the management and investment of the ward’s property, and describing the
care, education and guidance given to the ward.

Following the submission of this report, the court may take all measures it deems
necessary to protect the ward’s property and his financial and moral interests.

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 Section 2: Of the Testamentary Guardian and the Court-Appointed Guardian

In the absence of the mother and a testamentary guardian, the court shall appoint a
legal guardian for the ward, selecting the most qualified person from among the agnates,
failing that, among other relatives, and if not, from among other persons.
The court may designate two or more persons to exercise guardianship if it deems that it
is in the best interests of the ward, and it attributes their respective functions.
The members of the ward’s family, the petitioners for guardianship, and any other
person with a vested interest may propose a candidate for the court-appointed
guardianship. The court may appoint an interim guardian if need be.

The court shall immediately refer the case to the Public Prosecutor’s Office for an
opinion which must be given within a deadline not to exceed fifteen days, and the court
shall consider the case within a time limit not exceeding fifteen days from the date of the
reception of the Public Prosecutor’s Office’s opinion.

Testamentary and court-appointed guardians must be fully capable, diligent, and honest.
The solvability requirement is left to the appreciation of the court.

Testamentary and court-appointed guardianship may not be conferred upon:
1. A person who has been convicted for theft, breach of trust, forgery, or any other crime
against morality;
2. Anyone who has been adjudicated bankrupt or placed in liquidation;
3. A person in litigation or familial conflict with the ward, where the conflict could impact
adversely on the ward’s interests.

The court may appoint a surrogate guardian tasked with supervising the acts of the
testamentary or court-appointed guardian and orienting him or her based on the ward’s
interests, and the surrogate guardian shall likewise notify the court when he or she
considers the management of the testamentary or court-appointed guardian deficient or
fears that the ward’s estate may be depleted.

If the ward’s estate has not been inventoried, it becomes incumbent upon the
testamentary or court-appointed guardian to carry out an inventory, and in all cases shall
include the following:
1. Observations that the testamentary or court-appointed guardian may have concerning
the inventory;
2. A proposed amount of annual maintenance for the ward and any person for whom the
ward is responsible;
3. Specific propositions of urgent measures to be taken to safeguard the ward’s estate;
4. A plan for the management of the ward’s estate;

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. The known monthly or annual revenues generated by the ward’s estate.

The inventory, along with its supporting documents, shall be kept in the legal
representation record and transcribed on the monthly or daily management register if
necessary. The form and the content of the register shall be defined in a decree by the
Minister of Justice.

At the conclusion of the inventory, the Public Prosecutor’s Office, the legal
representative, the family council, or one or several of the ward’s relatives may submit
observations to the Guardianship Judge regarding the estimation of maintenance
necessary for the ward, and to organize his or her upbringing, education, and the
management of the ward’s estate.

A family council shall be established and entrusted with aiding the court in matters
pertaining to the family’s affairs; the composition and the tasks of the council shall be
defined by administrative regulations.

By order and under the supervision of the Guardianship Judge, two Adouls (public
notaries) shall undertake a final and comprehensive inventory of the ward’s assets,
vested rights and liabilities, after notification of the Public Prosecutor’s Office and in the
presence of the heirs, the legal representative, and the ward if he or she has attained
the age of fifteen.

Expert assistance may be sought in the inventory process, the evaluation of assets, and
the assessment of liabilities.

The testamentary or court-appointed guardian must record all acts that he or she
undertakes on behalf of the ward and their dates in the register provided for in preceding
Article 250.

If assets of the ward materialize that had not been entered in the previous inventory, the
testamentary or court-appointed guardian shall attach an appendix to the first inventory.

The testamentary or court-appointed guardian shall submit through two certified
accountants appointed by the judge an annual financial statement with all supporting
documents to the Guardianship Judge.

The judge shall not approve the financial statements until he has scrutinized and
controlled them and verified their accuracy.
If he detects any errors, he shall take all measures necessary in order to safeguard the
ward’s rights.

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Article 256
The testamentary or court-appointed guardian shall respond to requests by the
Guardianship Judge at any time in order to provide clarifications about the management
of the ward’s estate and furnish a financial statement.

[Official Arabic source text — English rendering unavailable in this section]
أعاله، أو امتنع عن تقديم الحساب أو إيداع ما بقي لديه من أموال المحجور ،بعد توجيه إنذار إليه يبقى دون مفعول داخل األجل المحدد له. - 63 - في حالة إخالل الوصي أو المقدم بمهمته ،أو عجزه عن القيام بها ،أو حدوث أحد الموانع المنصوص عليها في

The testamentary or court-appointed guardian shall be held liable for mismanagement of
the ward’s estate. The provisions applicable to a salaried trustee shall apply to him or
her even if he or she performs his mission for free. The testamentary or court-appointed
guardian may be liable for criminal proceedings, if necessary.

The mission of the testamentary or court-appointed guardian comes to an end in the
following cases:
1. The death of the ward, or the death or absence of the testamentary or court-appointed
guardian;
2. When the ward attains the age of legal majority, unless the court decides to maintain
the guardianship for other reasons;
3. When the mission for which the testamentary or court-appointed guardian was
designated has been accomplished or when the period of time for which the
testamentary or courtappointed guardian has been designated expires;
4. When a justification invoked to resign from the mission has been accepted;
5. When he or she loses capacity or is discharged or removed from his or her functions.

If the mission of the testamentary or court-appointed guardian comes to an end for
reasons other than death or loss of civil capacity, she or he shall submit a financial
statement with the requisite supporting documents within a deadline fixed by the
Guardianship Judge and not to exceed thirty days, except in compelling circumstances.
The court shall examine the submitted financial statement.

The testamentary or court-appointed guardian is liable for all damages caused by any
unjustified delay in the submission of the financial statements or in the transfer of the
ward’s assets.

The estate shall be transferred to the ward when he or she attains majority, and to his or
her heirs upon death, and to the person who assumes the responsibilities of the
testamentary or court-appointed guardian in other cases. In the event the estate is not
transferred, the provisions of Article 270 below shall apply.

In the event the testamentary or court-appointed guardian dies or loses his or her civil
capacity, the Guardianship Judge shall take the appropriate measures to protect and
safeguard the ward’s estate.

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Debts and compensation due to the ward from the deceased testamentary or court-
appointed guardian’s estate are privileged liens, in accordance with the ranks provided
for in the second paragraph, bis of Article 1248 of the Sherifyan Dahir (or Royal Edict),
dated August 12, 1913, which serves as the Law of Obligations and Contracts.

The ward who has come of age or whose guardianship has been removed reserves the
right to take legal action against the testamentary or court-appointed guardian, or any
other person entrusted with the same if he or she deems that any acts related to the
management of his or her accounts or estate has been adverse to his or her interests.
Such legal actions must be brought within the two years following the attainment of
majority or the removal of the guardianship, except in cases of falsification, fraud or
concealment of documents, which shall be actionable within one year following
knowledge of such acts.

The testamentary or court-appointed guardian may request compensation for exercising
legal representation, and such compensation shall be fixed by the court as of the date of
the request.

Chapter III: Of Judicial Oversight

The court shall undertake the oversight of legal representation in accordance with the
provisions outlined in this Book. Oversight entails supervising the interests of the
incapacitated and persons whose capacity is impaired, and ordering all measures
necessary to preserve their interests and supervise their management.

If a deceased person leaves behind minor heirs, or if the testamentary or court-
appointed guardian dies, the local administrative authorities and the relatives with whom
the deceased lived shall notify the Guardianship Judge of the death within a time limit
not to exceed eight days, and the Public Prosecutor’s Office is required to notify the
judge as soon as it learns of the death.

The deadline cited in the previous paragraph shall be extended to one month if the
deceased’s relative or the testamentary or court-appointed guardian has lost his or her
capacity.

The Guardianship Judge shall order the establishment of a legal document outlining the
rightful heirs and take all measures necessary to preserve the minor’s personal rights
and financial interests.

After consultation with the family council if necessary, the Guardianship Judge shall fix
the expenses and compensation required for the management of the ward’s estate.

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Article 269
In the event the legal representative wishes to engage in a transaction that results in a
conflict of interest between himself, his wife, or one of his ascendants or descendants on
the one hand, and the wards’ interests on the other, he shall petition the court, which
may authorize the transaction and appoint an ad hoc representative for the ward, who
will conclude the requisite agreement and strive to preserve the ward’s interests.

[Official Arabic source text — English rendering unavailable in this section]
إذا أراد النائب الشرعي القيام بتصرف تتعارض فيه مصالحه أو مصالح زوجه ،أو أحد أصوله أو فروعه مع مصالح المحجور ،رفع األمر إلى المحكمة التي يمكنها أن تأذن به ،وتعين ممثال للمحجور في إبرام التصرف والمحافظة على مصالحه.

In accordance with generally applicable rules, and after he or she has not responded to
a formal notice within the prescribed time limit, the testamentary or court-appointed
guardian may be liable to a fine, and his or her assets subjected to attachment or
receivership if he or she does not observe the provisions of preceding Article 256 or
refuses to present the financial statements or to transfer any of the ward’s property still
in his or her possession.

In the event the testamentary or court-appointed guardian fails in his or her mission or
becomes incapable of performing it, or in the existence of one the impediments cited in
preceding Article 247, the court may, after hearing his or her explanation, discharge him
or her of his duties or dismiss him or her, either at its own initiative, or at the request of
the Public Prosecutor’s Office or the concerned person(s).

The testamentary or court-appointed guardian may not perform any of the following acts
unless he has obtained authorization from the Guardianship Judge:
1. Sell any of the ward’s immovable or movable property whose value exceeds 10,000
dirhams or perform any transaction that creates in rem rights on the property;
2. Contribute a portion of the ward’s money to a civil or business firm or invest it in a
business venture or speculation;
3. Waive a right or a claim, opt for reconciliation, or accept an arbitrated settlement on
the ward’s property;
4. Enter into leases whose expiration extends beyond the end of the guardianship;
5. Accept or reject donations encumbered by a condition or a right;
6. Pay debts for which no binding judicial decision has been issued;
7. Pay from the ward’s assets any maintenance incumbent on the ward unless it has
been ordered by a binding judicial decision.
Any decision issued by the judge that authorizes the performance of any of the above
shall be duly justified.

The sale of movable property susceptible to depreciation and whose value exceeds
5,000 dirhams does not require authorization, and the same applies to immovable or
movable property whose value does not exceed 5,000 dirhams, providing that the sale is
not used as a means to evade judicial oversight.

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Article 273
The preceding provisions shall not apply if the price of movable property has been
established in an official decision and the sale has been closed at this predetermined
price.

[Official Arabic source text — English rendering unavailable in this section]
ال تطبق األحكام المذكورة إذا كان ثمن المنقوالت محددا بمقتضى القرارات واألنظمة وتم البيع بهذا الثمن.

The authorized sale of movable or immovable property shall be concluded in
accordance with the procedures provided for in the Civil Procedure Code.

Division of property owned jointly by the ward and a third party shall be concluded by
submitting a proposal to the court for approval, which shall be granted after the court has
ascertained by expert appraisal that such division is not inequitable to the ward.

The decisions that are issued by the Guardianship Judge in accordance with Articles
226, 240, 268, and 271 are open to appeal.

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 BOOK FIVE: OF WILLS (Not translated)

BOOK SIX: OF INHERITANCE (Not translated)

BOOK SEVEN: OF INTERIM AND FINAL PROVISIONS