What Are Guardianship and Guardian?
Legally, guardianship is a legal relationship that must be established either when a person is of legal age but needs to be restricted for specific reasons, or when a person is a minor and there is no existing parental custody relationship. A person may be placed under guardianship due to a legal obligation, but in some cases, this status may also arise from the individual’s own request to be placed under guardianship.
A guardian, on the other hand, is the appointed representative who holds guardianship rights over the individual concerned.
Guardianship and, accordingly, the role of a guardian are regulated by the Legislator in Article 403 of the Turkish Civil Code under the section titled “Guardian and Trustee,” as quoted below:
“The guardian is responsible for protecting all the interests of the minor or the person under guardianship concerning their person and property and for representing them in legal matters. A trustee is appointed to carry out specific tasks or manage property. Unless otherwise stated, the provisions regarding guardians also apply to trustees.”
Responsibilities of the Guardian
The duties and responsibilities of a guardian are regulated under Articles 438 to 444 of the Turkish Civil Code. These responsibilities include the following:
- Keeping records,
- Safekeeping of valuable items,
- Sale of movable property,
- Deposit of money,
- Commercial and industrial enterprises,
- Sale of immovable property.
In addition to these duties, the guardian is also liable for any damages caused by their negligent behavior during the execution of their guardianship duties.
The legal responsibilities of the guardian were detailed in a decision by the 18th Civil Chamber of the Court of Cassation, dated 07.01.2014, Case No: 2013/11987, Decision No: 2014/7, as follows:
“The lawsuit concerns a claim for compensation due to damages caused to the person under guardianship as a result of the guardian’s negligent behavior in performing their duties. In the present case, the defendant guardian did not cause any damage through an act (or omission) during the period they served as guardian. Additionally, since the alleged damage occurred prior to the appointment of the guardian, it is not possible to rule for compensation. As the conditions for the guardian’s liability set out in Articles 466 and subsequent articles of the Turkish Civil Code have not been met, the court should have dismissed the case. Therefore, the decision to accept the claim based on an unfounded reasoning was deemed incorrect.”
What Are the Circumstances Requiring Guardianship?
The circumstances requiring guardianship are listed in Articles 404 to 408 of the Turkish Civil Code, and are as follows:
- Minority (Being a Minor)
- Restriction (Incapacity/Legal Incapacitation)
a. Mental illness or mental deficiency
b. Prodigality, addiction to alcohol or drugs, immoral lifestyle, or poor management
c. Imprisonment (a sentence involving deprivation of liberty)
d.Upon request (due to old age, disability, inexperience, or serious illness)
Termination of Guardianship
The termination of the guardianship duty should be evaluated individually according to each circumstance that requires guardianship. Accordingly, guardianship over minors ends automatically when the minor reaches legal adulthood; guardianship over convicted persons ceases when the imprisonment ends. Guardianship over other restricted individuals is terminated by the decision of the authorized guardianship authority.
Competent and Authorized Court in Guardianship Cases
In guardianship cases, the competent court is the court of the minor’s or restricted person’s place of residence, while the authorized court is the civil peace court (sulh hukuk mahkemesi). In this regard, parties may need a lawyer specialized in guardianship law in Antalya to file and pursue the case.
Frequently Asked Questions
1. How Is a Guardian Appointed?
As stated in Articles 409 and 410 of the Turkish Civil Code (TCC), the procedure for appointing a guardian involves hearing the person concerned and the announcement of the decision made by the guardianship authority based on an expert report.
Article 419 of the TCC further states that, if necessary, even minors who are not yet of legal age may be placed under restriction, but this decision will take effect only after they reach adulthood.
Additionally, as a general rule, legally restricted adult children are not placed under guardianship but remain under parental custody.
2. What Are the Requirements to Become a Guardian?
First and foremost, the person to be appointed as a guardian must be of legal age. Additionally, the guardian candidate must possess sound reasoning and judgment abilities and be capable of undertaking the responsibilities of guardianship.
3. What Are the Reasons That Prevent Someone from Becoming a Guardian?
As stated in Article 418 of the Turkish Civil Code, persons who are legally restricted, those banned from public service, individuals leading a dishonorable life, those whose interests significantly conflict with the interests of the person to be appointed guardian, or who have hostility towards them, and judges of the relevant guardianship courts cannot serve as guardians. These situations constitute obstacles to guardianship.
4. How Is a Guardian Appointed During Imprisonment?
If a person’s imprisonment term is one year or longer, a guardian is appointed by the civil peace judge upon the prosecutor’s request. In appointing the guardian, priority is given to the person’s first-degree relatives (such as their child, spouse, mother, father, or sibling) following an investigation by law enforcement.
5. What Are the Guardian’s Obligations Regarding the Final Account and Delivery of Assets?
A guardian whose duty has ended is responsible for submitting the final report and account of the management to the guardianship authority. Additionally, the guardian is obligated to keep the assets of the person under guardianship ready to be handed over to the heirs or the new guardian.
6. When Do Guardianship and Restriction End After a Guardian Is Appointed?
If the court appoints a guardian indefinitely, the guardianship and restriction continue until a request for termination is made. If the appointment is made for a fixed term by the court, it ends when that term expires.
Additionally, in cases such as a minor reaching adulthood or the release of a restricted person from imprisonment, if there is no change in circumstances, the guardian may request an extension of the guardianship period from the court that issued the restriction, allowing the guardianship to continue.
7. Can a Guardian Sell the Immovable Property (House, Shop, Land, Field, Apartment, etc.) Belonging to the Restricted Person?
A guardian does not have the unrestricted authority to dispose of immovable property registered in the name of the restricted person. Therefore, any sale or similar transaction can only be carried out after obtaining permission from the guardianship authority (civil court of first instance), provided that it is justified as being in the best interest of the restricted person. This permission can only be executed under the conditions set by the court (such as by auction or negotiation).
8. Can a Guardian Sell a Vehicle Belonging to the Restricted Person?
A guardian does not have the unrestricted authority to sell a vehicle, just as with the sale of immovable property or similar transactions. For this, the guardian must request permission from the guardianship authority, which is the civil court of first instance, and then carry out the sale under the conditions set by the court.
9. Can a Guardian Withdraw Money from the Restricted Person’s Bank Account?
A guardian can only withdraw money from the restricted person’s bank account with the permission granted by the guardianship authority, which is the civil peace court (sulh hukuk mahkemesi), upon the guardian’s request.
10. How Is a Guardian Replaced If They Abuse Their Authority?
If it is determined that the guardian is abusing their authority, they can be replaced through a lawsuit filed at the civil peace court to revoke or change the guardianship. This lawsuit can be initiated by the restricted person (the ward), the ward’s relatives, or other interested parties.
11. I Do Not Want to Be a Guardian, What Can I Do?
In urgent cases, the court can appoint a guardian without obtaining the consent of the person appointed. However, if the guardian does not wish to carry out the duty, they can submit a petition to the court that made the appointment, requesting to be relieved of the guardianship and for a replacement to be appointed. Since the guardian’s duties and responsibilities continue until the court issues a new decision, the guardian must continue to fulfill their obligations carefully until then.
What Are the Reasons and Procedures for Removing a Guardian from Office?
The reasons for removing a guardian from office are explained in Article 483 of the Turkish Civil Code (TMK) as follows:
“If the guardian severely neglects their duty, abuses their authority, engages in conduct that undermines trust, or becomes insolvent in paying debts, they shall be removed from office by the guardianship authority. If the guardian’s inadequacy in performing their duty endangers the interests of the person under guardianship, the guardianship authority may remove the guardian from office even if there is no fault on the guardian’s part.”
The procedure for removing a guardian is regulated in Article 484 of the TMK as follows:
“The person under guardianship who has the capacity to discern, or any relevant party, may request the removal of the guardian.
If the guardianship authority learns of the existence of a cause for removal by any other means, it is obliged to remove the guardian ex officio.”
13. How to File a Complaint and Appeal to the Guardianship Authority?
A person under guardianship and any relevant parties, provided they have the capacity to discern, can file a complaint to the guardianship authority against all actions and transactions of the guardian. An appeal against the decisions of the guardianship authority can be made by these persons to the supervisory authority within 10 days from the date of notification.
Some Supreme Court Decisions Regarding Guardianship Lawsuits and Appointment of Guardians
- “According to the explained provisions, although the competent court during the guardianship appointment lawsuit is the court of residence of the restricted persons, after the guardian is appointed, the residence of the restricted persons is Ahlat, where the guardianship authority that issued the restriction decision is located, and the residence of the restricted persons cannot be changed without the permission of the guardianship authority. There is neither a request nor a decision by the guardianship authority in the file regarding the change of residence of the restricted persons. In this case, since the competent court to decide on the plaintiff’s request is the Ahlat Civil Peace Court, where the guardianship authority is located, it was incorrect for the court to decide on the merits instead of issuing a lack of jurisdiction decision and sending the file to the Ahlat Civil Peace Court.” (Supreme Court 18th Civil Chamber, Dated 02.02.2015, Case No. 2014/21410, Decision No. 2015/1252)
- “Although the guardianship over a minor automatically ends when the minor reaches majority according to Article 470 of the Turkish Civil Code No. 4721, the guardian’s liability continues until the guardianship authority decides that the guardian’s duty has ended. Pursuant to Articles 489 and following of the same Law, the guardian whose duty has ended is obliged to submit the final report and the definitive account related to the management to the peace court; in addition, the guardian must keep the estate ready to be handed over to the person under guardianship, their heirs, or the new guardian. The final report and definitive account are reviewed and approved by the peace court just like the periodic reports and accounts submitted earlier. After the final report and definitive account are approved and the estate is delivered to the person under guardianship, their heirs, or the new guardian, the peace court decides that the guardian’s duty has ended. The peace court notifies the guardian with the decision on the approval or rejection of the final report and definitive account, stating that the person under guardianship, heirs, or new guardian have the right to file a compensation lawsuit. This notification also indicates the termination of the guardian’s duty. According to Article 492 of the same Law, the statute of limitations for a compensation lawsuit against the guardian starts one year after the notification of the definitive account. Additionally, pursuant to the last paragraph of Article 493, compensation lawsuits arising from guardianship expire after ten years from the notification of the definitive account. In the concrete case, although guardianship over the minors ended automatically upon each reaching majority, the review of the guardianship file numbered 1991/659 Main and 1991/551 Decision at the Rize Peace Court shows that the requirements of the above-mentioned legal provisions were not fulfilled, thus the guardian’s liability continued, and without considering that the conditions for the statute of limitations were not met, the court’s dismissal of the case due to the statute of limitations was deemed incorrect.” (Supreme Court 18th Civil Chamber, Dated 18.12.2014, Case No. 2014/10634, Decision No. 2014/18506)
- “Article 396 of the Turkish Civil Code stipulates that the guardianship bodies consist of the guardianship offices, guardians, and custodians; Article 397 states that public guardianship is carried out by guardianship offices composed of the guardianship authority and the supervision authority, with the guardianship authority being the peace court and the supervision authority being the civil court of first instance. The legislator established a hierarchy between the guardians (as guardianship bodies) and the guardianship offices, peace courts, and civil courts of first instance in Article 461, determining that the peace court as the guardianship authority is the complaint body against the actions and transactions of the guardian, and the civil court of first instance as the supervision authority is the appellate body against the decisions of the peace court. Furthermore, Article 488 provides that concerned parties may object to the decisions of the guardianship authority related to the administration of guardianship within ten days from the notification, and that the supervision authority shall conclusively decide on the objection, holding hearings if necessary. Since it is understood that the decisions of the guardianship authority regarding the administration of guardianship are not subject to appeal, the file shall be RETURNED to the court for a decision by the supervision authority on the request…” (Supreme Court 8th Civil Chamber, Dated 22.01.2018, Case No. 2017/8297, Decision No. 2018/1014)
- “The plaintiff, due to being a convict, filed for divorce through his guardian and declared that his spouse also accepted the divorce request; the defendant spouse also stated in the response petition and at the hearing that she agreed to the divorce. The court ruled that an uncontested divorce was not possible because the plaintiff was a convict, proceeded with the case as a contested divorce, and decided to dismiss the case. The plaintiff has been restricted due to the finalized prison sentence. Therefore, the plaintiff, who has limited legal capacity, can exercise personal rights closely tied to the individual without the consent of his legal representative (Turkish Civil Code Article 16). The plaintiff’s request was directed towards a “mutual consent divorce” regulated under Article 166/3 of the Turkish Civil Code. The court should have brought the plaintiff from the prison, summoned the defendant, taken their statements, and decided on their divorce by mutual consent if the conditions were met. Thus, the decision to dismiss the case as stated in writing was incorrect. RESULT: The appealed ruling is REVERSED for the reasons stated above…” (Supreme Court 2nd Civil Chamber, Dated 01.06.2015, Case No. 2015/945, Decision No. 2015/11223)
- In the concrete case; before the death of the lessor … during the trial, it is understood that he was under guardianship and that … was appointed as his guardian. Within the documents related to the relevant guardianship file in the case file, it is understood that the said guardian applied to the guardianship authority on 10.09.2014, stating that the value appraisal of the disputed immovable property must be conducted in order for the property to be leased again by tender. Although there is no written document in the file proving the handover of the keys by the tenant, considering the application made by the lessor’s guardian to the guardianship authority on 10.09.2014, it is understood that the leased property came under the lessor’s control on that date, and therefore the eviction date must be accepted as 10.09.2014. Accordingly; the defendants are responsible for the unpaid rent debts until the eviction date of 10.09.2014, and after this date, only limited to the end of the rental period, they may be held liable for the reasonable rent for the period in which the property could be reasonably re-leased under the same conditions, as determined by the court-appointed expert. Since this reasonable rent claim is compensatory in nature and not liquidated, an enforcement denial indemnity cannot be ruled against the defendants regarding this amount. Moreover, since the contract’s Article 7 regulates ‘…’, it should be evaluated that the deposit must be deducted from the debt, and the decision should be made accordingly. However, the court disregarded this and ruled that the lease contract, which started on 01.01.2014 for a one-year term, and considering that the deceased property owner was under guardianship according to the letter sent to the guardianship file by the Istanbul 13th Civil Court of Peace with file number 2013/896, it was understood that the property could not be re-leased in 2014. Due to the property owner being under guardianship and the procedure required for re-leasing taking a long time, the court deemed further investigation of a reasonable period unnecessary. Given that the process for re-leasing the property involves obtaining permission from the guardianship authority, the tender process, and the approval of the offer by the guardianship authority after the tender, it is clear that the re-leasing period would exceed one year, which it indeed did. Therefore, the tenant—defendant of the consolidated case—should be held responsible for the full rent of the contract period. It was understood from this latest review that the decision was rendered with insufficient investigation and erroneous assessment. Consequently, the request for revision was accepted, the paragraph (2) of the decision numbered 2020/7091 and dated 25.11.2020 issued by the Chamber was annulled, and the ruling concerning the consolidated case was overturned for the stated reasons. (Supreme Court 3rd Civil Chamber, Dated 08.06.2021, Case No. 2021/3369, Decision No. 2021/6221)
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