The protective function toward incapacitated persons (including minors, prodigals, and the mentally incompetent) in the legal systems of Iran and Iraq is based on formal legal mechanisms such as guardianship (wilāyah), testamentary guardianship (waṣāyah), tutorship (qayyūmiyyah), and trusteeship (amīn). This article, using a comparative method, analyzes and examines the range of powers and responsibilities of the legal representatives of incapacitated persons in Iranian and Iraqi law. It addresses the principal categories of legal representatives (such as guardian, testamentary guardian, tutor, and trustee) and the practical challenges in protecting incapacitated persons. By analyzing the scope of both financial and non-financial authorities of representatives, the supervisory systems of the two countries (public prosecutor, family court, and protective organizations) are compared, and solutions are offered to strengthen protection for incapacitated persons. The findings show that in both systems, representatives (guardian, testamentary guardian, tutor, and trustee) are obliged to observe the best interests of the incapacitated person and are subject to judicial oversight; however, there are differences in supervisory methods and the scope of authority. Challenges such as the complexity of the process for appointing a tutor, weakness in practical oversight, and lack of legal awareness are also analyzed.

Abstract

The protective function toward incapacitated persons (including minors, prodigals, and the mentally incompetent) in the legal systems of Iran and Iraq is based on formal legal mechanisms such as guardianship (wilāyah), testamentary guardianship (waṣāyah), tutorship (qayyūmiyyah), and trusteeship (amīn). This article, using a comparative method, analyzes and examines the range of powers and responsibilities of the legal representatives of incapacitated persons in Iranian and Iraqi law. It addresses the principal categories of legal representatives (such as guardian, testamentary guardian, tutor, and trustee) and the practical challenges in protecting incapacitated persons. By analyzing the scope of both financial and non-financial authorities of representatives, the supervisory systems of the two countries (public prosecutor, family court, and protective organizations) are compared, and solutions are offered to strengthen protection for incapacitated persons. The findings show that in both systems, representatives (guardian, testamentary guardian, tutor, and trustee) are obliged to observe the best interests of the incapacitated person and are subject to judicial oversight; however, there are differences in supervisory methods and the scope of authority. Challenges such as the complexity of the process for appointing a tutor, weakness in practical oversight, and lack of legal awareness are also analyzed.