Question
I am the guardian (apotropus) for my elderly mother who has dementia. When she was well she gave tsedoko but was not careful to give ma’aser. Am I permitted to give a tenth for tsedoko, as one should, or is it forbidden because it is her money and I am only her agent and she wasn’t careful when she was well?
Answer
The Gemara (Gittin 52A) discusses the duties of a guardian of orphans. The Gemoro rules that the guardian is supposed to buy tsitsis and tefillin for them, but he may not generally give any tsedoko on their behalf. The Gemara states that the differentiating factor is that tsitsis, tefilin and the like have a limit: one needs to buy one pair of tefillin and ever-so-often a tallis and that is it. Therefore, the guardian may act on their behalf and purchase these mitzvah items. However, he may not generally give tsedoko even though it is also a mitzvah because there is no limit on the amount of tsedoko one can give since there are so many poor people. Therefore, in the interest of preserving the assets of the orphans, Chazal forbade a guardian from distributing tsedoko on their behalf.
The Gemoro (Bovo Basra 8A) only allows a guardian to give tsedoko if it is in the interest of the orphans e.g. there is a general public tsedoko campaign and it would give the orphans a bad reputation if they did not participate at all. Thus, it would seem that one who is a guardian for an elderly person may not give ma’aser, since his status and duties are similar to the status and duties of a guardian of young orphans.
However, there is another Gemoro (Kesubos 48A) which discusses two other people who need others to handle their affairs. One is someone away on an extended trip (In the time of the Gemoro communication was very difficult if not impossible.) and the other is someone who became a shoteh-mentally incompetent.
The Gemoro states that for sure we do not distribute tsedoko money on behalf of the one who is on an extended trip. But whether we distribute tsedoko on behalf of one who “lost his mind” is a dispute between two Amoraim. The Ran (Kesubos 17A) writes that according to the usual rules of psak, the law should be that beis din who is the guardian by default, or an actual appointed guardian, may not distribute tsedoko on behalf of a shoteh, and the Ran remains with a question as to why the Rambam (Nachalos 11, 11) rules that he may.
The Kesef Mishneh answers that the Rambam understood that the dispute in the Gemara was only about a person who is on a trip, but according to all the Amoraim a guardian may give tsedoko on behalf of someone who is mentally incompetent. He offers two reasons why beis din, or a guardian who is beis din’s representative, is allowed to give away other people’s money to tzedoko. One reason is because a person’s assets are meshubad (subordinated) to enable him to fulfill the mitzvah of tsedoko. This is similar to other monetary mitzvos like pidyon haben where Tosafos writes that a person’s assets are meshubad since there is an obligation to perform the mitzvah. Thus, even if he is no longer of sound mind, the obligation of his assets remains in place. Second, he argues that it is in the person’s interest to give tsedoko since there is a mitzva to do so and we are allowed to act on another person’s behalf if it is in his best interest.
The Toras Hazeroim (page 137) and Ketsos (290, 3) take issue with the second reason because when a person is not of sound mind he is classified as a shoteh and is not obligated to perform any mitzvos. Therefore, even if we give tsedoko on his behalf he does not benefit from the mitzvah because he did not play any part in the performance of the mitzvah and was not obligated to perform the mitzvah. The Ketsos is very happy with the first reason.
Rav Elchonon Wasserman (Shiurei Rav Elchonon, Bava Basra 5) answers that tsedoko is unique in the fact that even if one is not of sound mind, nevertheless, he does receive reward for giving tsedoko when his assets are given to tsedoko. The source is a Chazal (quoted by Rashi, Vayikro 5, 17) that derives from the mitzvo of shikchoh, where the Torah writes that one who forgets to harvest part of his field and the crops are taken by the poor, will be blessed. That also if a poor person finds money which inadvertently fell from a person’s pocket, the loser will have a reward for tzedoko. Thus, we see that even if a person had no positive intention to give money to a poor person he is still blessed. Therefore, Rav Elchonon argues that even if a person is not of sound mind he is rewarded if his guardian gives tsedoko from his assets.
The Sho’ail Umeishiv (6, 48) questions the first reason, since normally a person’s assets are only meshubad if he is obligated to perform the mitzvah. But since a shoteh is not obligated to perform the mitzvah his assets should not be meshubad. He answers (and a similar explanation is offered by Shiurei Rav Shmuel Bava Basra 188) that tsedoko is different from other mitzvos because in the other mitzvos the mitzvah does not directly result from a person’s assets. Rather one uses his assets to perform the mitzvo. However, tsedoko is a mitzvah in which the income or assets themselves cause the mitzvah. Therefore even if a person is a shoteh, if he has income or assets they are meshubad to tsedoko.
The Chasam Sofer (Responsa: Orach Chaim 2) gives a different reason. He answers that since the Posuk says that giving tsedoko saves a person from death, therefore, just like a guardian must buy drugs for a shoteh who needs them so too he should give tsedoko.
Having understood the two answers of the Kesef Mishna, we should note that the Shulchan Aruch rules like the Rambam, that a guardian for a shoteh may give tsedoko from the assets of the shoteh. We still need to consider if he can or should give ma’aser.
It would seem that based on the reasons given above that it would certainly be proper to give ma’aser. Just like the Chasam Sofer writes that we give tsedoko because it saves from death so too giving ma’aser helps a person to become wealthy and in fact is the only mitzvah where we are allowed to “test” Hashem. Therefore, it is the safest investment on her behalf.
This in fact is the logic and ruling of the Yoshiv Yitzchok (6, 47). The Gur Arye Yehuda (Yoreh Deah 115) rules that since the only reason the Gemara says we don’t give tsedoko is because it is limitless, we can give ma’aser because it is fixed. The Yoshiv Yitzchok limits his ruling to a senile person who has sufficient assets and/or income to take care of his needs, since the needs come before giving tsedoko.
A similar ruling was issued by Rav Yitzchok Silberstein (Chashukei Chemed: Succa 49B). He discusses a woman who was a shoteh who was living in a hostel where the government paid all her expenses and she inherited fifty thousand dollars. Her mother, who was her guardian, wanted to purchase a sefer Torah since she never had children and this would serve as a perpetuation of her memory. Rav Silberstein was in favor of the idea since her needs were taken care of and her guardian was in favor.
In conclusion: If your mother has enough assets to cover her foreseeable needs you may give ma’aser from her income and it will be beneficial to her.
