Appointment of a Guardian (Trustee) in English Law

Duties and Powers of the Guardian (Trustee)

A guardian (trustee) refers to a person appointed to carry out a specific task or to manage a specific property. The duration of the guardian’s duty and the remuneration for the task are determined by the guardianship authority. A person appointed as a guardian may not engage in any task other than the one they were assigned. Furthermore, due to the nature of the duty, the guardianship ends when the task is completed or the relevant reasons cease to exist.

The role of a guardian is regulated under three subcategories in the Turkish Civil Code:

Voluntary (discretionary) guardianship (Article 428).

Representative guardianship (Article 426 of the Turkish Civil Code),

Administrative guardianship (Article 427), and

1.Representative Guardianship

A representative guardian is a person appointed to perform a specific task or tasks in accordance with the orders of the guardianship authority. As mentioned, the representative guardian appointed as a result of such a decision is regulated under Article 426 of the Turkish Civil Code, titled “Cases Requiring Guardianship.”

2.Administrative Guardianship

An administrative guardian is essentially a guardian assigned to manage and administer property that is not under anyone’s management or control. Therefore, the administrative guardian is responsible for the protection and safeguarding of such property.

3.Voluntary (Discretionary) Guardianship

A voluntary, or discretionary, guardian is appointed by the guardianship authority upon the request and application of the individual due to reasons such as old age, illness, or lack of experience. In this context, the person requesting a discretionary guardian must be of legal age.

How Is a Guardian Appointed?

As mentioned above, guardianship duties are categorized as representative guardianship, administrative guardianship, and voluntary (discretionary) guardianship. Accordingly, the purpose and grounds for appointment differ for each type of guardian. Representative and administrative guardians are appointed by the guardianship authority when deemed necessary, while a voluntary guardian is also appointed by the guardianship authority, but only upon the direct request of the person to be appointed a guardian.

What Are the Conditions for the Appointment of a Guardian?

In the Turkish Civil Code (TCC), the conditions for the appointment of a guardian are regulated specifically for each type of guardianship. Accordingly;

A. Conditions for the Appointment of a Representative Guardian (Article 426 of the Turkish Civil Code):

If an adult is unable to handle an urgent matter personally or appoint a representative due to illness, being in another location, or a similar reason,
If there is a conflict of interest between the legal representative and the minor or the ward in a particular matter,
If there is an obstacle preventing the legal representative from fulfilling their duties.

B. Conditions for the Appointment of an Administrative Guardian (Article 427 of the Turkish Civil Code):

If a person has been absent for a long time and their place of residence is unknown,
If there is no sufficient reason to place someone under guardianship, but the person is incapable of managing their property or appointing a representative to do so,
If the heirs to an estate are not yet determined, or if the interests of a fetus (unborn child) require protection,
If a legal entity is deprived of its necessary governing bodies and its management cannot be ensured by other means,
If no means has been established to manage or spend money and other donations collected from the public for a charitable cause or another matter of public interest.

C. Conditions for the Appointment of a Voluntary (Discretionary) Guardian (Article 428 of the Turkish Civil Code):

“If there is a reason for voluntary restriction, a guardian may be appointed to an adult person upon their request.”

Appointment of a Guardian to Companies

The appointment of a guardian to companies is a precautionary mechanism linked to various legal reasons, such as criminal investigations, disputes between partners, or connections with illicit proceeds. Accordingly, the guardian appointed to the company will be authorized to validate the decisions and actions of the company’s management body by approving them.

Appointment of a Guardian to Municipalities

The appointment of a guardian to municipalities generally refers to the temporary appointment of a guardian by the Ministry of Interior in place of elected mayors or administrators. This appointment is regulated in Article 47 of the Municipalities Law No. 5393, which states: “Municipal authorities or members of these authorities, who are subject to an investigation or prosecution due to a crime related to their duties, may be suspended from their duties by the Minister of Interior until a final judgment is rendered.”

Additionally, as stated in Article 45 of the Municipalities Law, “However, in cases where the mayor, deputy mayor, or council member is suspended from office or arrested due to crimes of aiding and abetting terrorism or terrorist organizations, or is banned from public service, or their position as mayor or council member is terminated, a new mayor, deputy mayor, or council member shall be appointed by the authorities mentioned in Article 46.”

According to this, the appointment of a guardian to a municipality, in accordance with the legislation, is only possible if an investigation and prosecution related to a crime committed by the mayor concerns a terrorism offense. However, if the investigation or prosecution against the mayor is not related to terrorism, and the mayor is unable to continue in office for such reasons, the appointment of a guardian will not be applicable. In such a case, the relevant municipal council must elect a person to carry out the duties of the mayor.

The Court Responsible and Authorized for the Appointment of a Guardian

The court responsible for the appointment of a guardian is the peace court of the person’s place of residence, while the authorized court is the civil court of peace. In this regard, the parties may need an attorney in Antalya to request the appointment of a guardian or follow up on the status of the appointment.

Frequently Asked Questions

1.What Does a Guardian Do?

As mentioned above, guardianship is divided into three subcategories by the Legislator. The first type, the representative guardian, is responsible for carrying out certain tasks or duties and, as the name suggests, has the responsibility to represent the person to whom they are appointed. The second type, the management guardian, manages and administers the property of the person to whom they are appointed but that is currently not under anyone’s management or administration. In this regard, Article 460 of the Turkish Civil Code includes the following provision:

“If a guardian is appointed to manage and supervise an estate, they may only carry out the necessary tasks related to the management and protection of that estate. The guardian’s ability to perform other tasks is dependent on a special authorization from the represented person, or, if the represented person is unable to grant this authorization, on the permission of the guardianship authority.”

Finally, the optional (voluntary) guardian is a type of guardian appointed due to the adult’s old age, illness, or inexperience, based on their request for guardianship under voluntary guardianship provisions.

2.In What Cases Is a Guardian Appointed?

As mentioned above, a guardian is appointed for the execution of a specific task or the management of certain assets. For example, if there is a case between a mother and her child, a guardian may be appointed due to a conflict of interest.

3.Why Is a Guardian Appointed?

A guardian is appointed by the guardianship authority after it is deemed necessary in the specific situation. An example of this would be when there is a strong suspicion that a company has committed a crime or crimes specified in the law, in which case a guardian may be required.

4.What Are the Limits of a Guardian’s Authority?

A guardian appointed and tasked by the authorized authority has the right to carry out ordinary tasks. However, for extraordinary dispositions such as the sale of real estate, the guardian cannot act without court permission.

5.How Is a Guardian Removed?

A guardian’s duty ends when the task for which they were appointed is completed. Additionally, the guardian can be removed if the reason or reasons for their appointment no longer exist.

Some Supreme Court Decisions Regarding Guardian Appointment

“In the plaintiff’s petition, the plaintiff’s attorney stated that while the plaintiff was a board member of the company … Ambalaj A.Ş. (the company outside the lawsuit), their position as a board member ended when the company was assigned to a guardian. It was stated that before the assignment to the guardian, there was no debt, but a debt emerged as a result of the assignment to the guardian, and the Institution placed a lien on the plaintiff’s real estate regarding this debt. Therefore, it was requested and the lawsuit was filed for a decision to be made stating that the plaintiff is not responsible for this debt…” (Supreme Court 10th Civil Chamber, Decision dated 06.02.2025, Case No. 2024/15404, Decision No. 2025/1621)
“The guardian requesting the appointment has been appointed as a management guardian in accordance with Article 2 of the Law No. 3561 on the Appointment of Asset Officers as Guardians. The competent court for the management guardian is the guardianship authority in the place where the majority of the assets are managed or where the property belonging to the represented person is located, as stipulated in Article 430/2 of the Turkish Civil Code (TMK). Considering that the court cannot issue a decision of lack of jurisdiction if the residence of the person under guardianship changes after the date of the lawsuit, it is necessary for the court to evaluate whether to grant authority and permission to the guardian in accordance with the request and make a decision accordingly. Therefore, in light of the additional reasons mentioned above and also adopted by the General Assembly of the Court of Appeals, the decision of the Special Chamber for the overturning should be followed, and a decision should be made on the merits of the case. It is contrary to procedure and law for the court to insist on the previous decision on the grounds of lack of jurisdiction.” (Supreme Court of Appeals General Assembly, Decision dated 24.11.2020, Case No. 2017/2772, Decision No. 2020/937)
“Upon reviewing the information and documents in the file, it is understood that following the death of the testator, … , the surviving heirs are the spouse … and their joint child Mira Sönmez, born in 2014. The mother … requested the appointment of a guardian in order to exercise the rights over the company shares inherited from the father for the minor child. Although the plaintiff is the legal guardian and thus the legal representative of the minor … , since they are both shareholders in the same company, there is a conflict of interest between them. Therefore, in accordance with Article 426 of the Turkish Civil Code (TMK), the case should have been accepted, and the written justification for rejecting the case was incorrect.” (Supreme Court of Appeals 8th Civil Chamber, Decision dated 24.01.2018, Case No. 2017/11336, Decision No. 2018/1279)
‘”The minor … was born on 20.05.2009 and is under the custody of her mother. If the interests of the legal representative of a person and those of the restricted person conflict, the guardianship authority shall appoint a representative guardian upon the request of the concerned party or ex officio. (TMK Article 426/2) In this case, the court should have asked the plaintiff for evidence regarding the request to appoint a guardian for minor … . If the evidence is provided, it should have been gathered and a decision made based on the outcome, but the decision was made without proper examination, which is contrary to procedure and law.” (Supreme Court of Appeals 18th Civil Chamber, Decision dated 04.06.2012, Case No. 2012/5542, Decision No. 2012/6826)
“The court found that since there was a conflict between the legal interests of the mother and the legal interests of the child in the rejection of the inheritance, the appointment of a guardian for the minor should have been made. The dispute should have been directed towards the guardian, and the evidence should have been gathered if presented. However, the court made a decision based on an incomplete examination of the case without appointing a guardian for the minor, which was found to be contrary to procedure and law.” (Supreme Court of Appeals 2nd Civil Chamber, Decision dated 07.02.2011, Case No. 2010/11840, Decision No. 2011/1757)
“According to Article 426/2 of the Turkish Civil Code (TMK), if the legal representative’s interests conflict with the minor’s interests in a matter, the guardianship authority shall appoint a guardian for the minor either upon the request of the concerned party or ex officio. Although the plaintiff … is the legal guardian of the minor …, and therefore their legal representative, since both parties are shareholders of the same company and there is a conflict of interest between them, the request for the appointment of a guardian should have been accepted in accordance with Article 426 of the TMK. The rejection of the request with written reasoning was not deemed correct and required a reversal.” (Supreme Court of Appeals 11th Civil Chamber, Decision dated 10.05.2018, Case No. 2016/11335, Decision No. 2018/3458)
“From the case file, it is understood that the minor previously resided at the address of …, later moved with his family from Ilgın to …, and is currently registered at the address … in the address-based registration system. Article 430/1 of the Turkish Civil Code (TMK) stipulates that ‘…the representative guardian is appointed by the guardianship authority based on the residence of the person to be appointed as the guardian.’ The request pertains to representative guardianship as specified in Article 426/2 of the TMK, and according to Article 430/1 of the TMK, the guardianship authority at the residence of the person to be appointed as a guardian has jurisdiction. Since it is understood that the minor Z… S… resides with his biological mother G… Ç… at the address …, the case should be heard and concluded in the 13th Civil Court of Peace of Istanbul Anatolia.” (Supreme Court of Appeals Civil Chamber, Decision dated 03.11.2015, Case No. 2015/10492, Decision No. 2015/10259)

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