Guardianship in Turkish Law and the appointment of a guardian
Table of Contents
- What is guardianship in Turkiye?
- When is a guardian appointed for an incompetent person?
- Cases in which a guardian can be appointed in Turkiye
- 1. Guardianship of the minors
- 2. Guardianship of the mentally incompetent (mental illness or intellectual disability)
- 3. Guardianship of incompetent due to mismanagement or poor lifestyle
- 4. Guardianship of the convict
- 5. Guardianship over whoever desires to do so of his own free will (such as the elderly)
- Cases in which a guardian can be appointed in Turkiye
What is guardianship in Turkiye?
With the aim of protecting minors who are not in the custody of their parents, or adults who are unable to manage themselves and their property, and in order to preserve the rights of those minors and maintain their legal security, resort to what is known as guardianship or legal disability in Turkiye, where minors are placed - those who do not have direct custody of their parents - under guardianship.
Another case of guardianship is with regard to large companies that cannot manage themselves and their properties, as they are legally obstructed first, in preparation for placing them under legal guardianship later.
What is the court responsible for enforcing guardianship?
The Civil Magistrate's Court - in the place of residence of a minor or a person with a legal disability - is the court authorized to implement guardianship by appointing a guardian or to form guardianship over a person placed under this guardianship.
The method of applying for guardianship in Turkish law
The application of guardianship in Turkish law requires the achievement of two procedures, namely:
- Watch the experts’ report: Guardianship can only be established due to illness or mental impairment based on the report of the official Health Board in accordance with (Article 409/2 of the Turkish Civil Code).
Before making the guardian’s decision in Turkiye, the judge may hear the person whose restraint is requested, taking into account the report of the Health Board.
- Announcement: When the restriction decision is finalized, it shall be announced immediately at the place of residence of the restricted person and the place where it was registered.
When is a guardian appointed for an incompetent person?
As for the answer to when a guardian is appointed in Turkiye? Legal guardianship does not enter into force until the date of its announcement, and accordingly, the legal transactions of a person with a legal disability are considered valid until the date of the announcement.
Persons who must be protected according to the reasons mentioned in the Turkish Civil Code are placed under the description of legal disability, and therefore under legal guardianship, based on a court order as we have already indicated.
Also, major companies that cannot protect their personal interests are placed under the same legal disability status that we talked about, with the aim of achieving the same aforementioned goal, which is the protection of rights, and in this case, the court appoints a guardian for the persons whose rights must be legally protected.
Cases in which a guardian can be appointed in Turkiye
1. Guardianship of the minors
According to Turkish law, minors are placed under the guardianship of their parents in any case until they reach the age of eighteen, and for this reason, minors will already be protected by their parents, and therefore it is not necessary to put them under guardianship.
However, if both parents are dead or missing for a long time, or they are denied custody in any way by court order, then the minor will not be under the guardianship of his parents.
As for the custody of a child born out of wedlock, according to the law, he is placed under the guardianship of the mother, or under the guardianship of the father in some cases. But if it is necessary to be placed under guardianship, then it will be placed out of necessity and in the interest of the child under legal guardianship.
2. Guardianship of the mentally incompetent (mental illness or intellectual disability)
According to Article 405 of the Turkish Civil Code, “a legal person who is unable to perform his business, or constantly needs assistance to protect and care for him, or poses a threat to the security of others due to his mental illness or mental weakness is prohibited by law.”
It is understood from this legal text that having a mental illness or mental impairment is not the only reason for applying for legal guardianship to apply for legal disability. The person is put under legal guardianship, as we mention in the next paragraph.
3. Guardianship of incompetent due to mismanagement or poor lifestyle
There are many reasons stipulated in Article 406 of the Turkish Civil Code, which requires placing a person under legal guardianship, such as extravagance, alcohol or drug addiction, bad lifestyle, poor property management, and the individual's lack of interest in his property and financial affairs, or that the person or his family expose himself to the risk of falling into poverty and financial hardship and therefore need continuous protection and care.
A bad lifestyle means: exhibiting behaviors that are contrary to public morals, and contrary to public order, in other words, living a life in which the moral and social values prevailing in society are ignored.
4. Guardianship of the convict
A person is considered legally incapacitated if he has been sentenced to a custodial penalty for one year or more than one year, and the court responsible for executing the sentence shall report the guardianship status on its own to the relevant guardianship authority.
When a person is sentenced to a custodial penalty, it is not only that he must be placed under legal guardianship to ensure that he can perform his assigned duties normally, but that mere judgment of him is sufficient to place him under legal guardianship.
5. Guardianship over whoever desires to do so of his own free will (such as the elderly)
According to Article 408 of the Turkish Civil Code, a person can request to be placed under legal guardianship, if he can prove that he is unable to perform his work due to his advanced age, disability, inexperience, or serious illness.
Edited by Gars Consulting Company ©
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