What is Guardianship?
Legally, guardianship is a legal relationship established between a guardian and an individual whose personal or property rights need protection. The conditions under which guardianship is established, who can become a guardian, and the qualifications required for guardians are all regulated by law. This means individuals cannot freely appoint someone as their guardian based solely on their personal preference.
Circumstances Requiring Guardianship
According to Article 404 and subsequent articles of the Turkish Civil Code, certain conditions necessitate guardianship. Under the following circumstances, a person may be placed under guardianship:
Being underage
Mental illness or mental incapacity
Prodigality, alcohol or substance addiction, immoral lifestyle, or poor management
Imprisonment for a restrictive sentence
Requesting to be placed under guardianship
Guardianship Due to Being Underage
The law considers individuals under the age of 18 as minors and generally places them under the custody of their parents. However, minors who are not under their parents' custody are placed under guardianship, and a guardian is appointed for them. Article 404 of the Turkish Civil Code states:
"Officials such as registry officers, notaries, administrative authorities, and courts who learn of a situation requiring guardianship must immediately notify the competent guardianship authority."
Therefore, for minors not under parental custody, an application can be made to the Civil Court of Peace for the appointment of a guardian.
Guardianship Due to Mental Health Issues
Individuals who cannot manage their own affairs or pose a danger to the safety of others due to mental illness or incapacity are placed under guardianship. Similarly, public authorities and courts must report any situation requiring guardianship to the relevant guardianship authority.
Guardianship Due to Prodigality or Addiction
Individuals who, due to poor lifestyle choices, substance addiction, prodigality, or mismanagement, pose a risk of bringing themselves or their families into poverty may be placed under guardianship. Continuous care and protection needs or threats to public safety also constitute reasons for guardianship.
Guardianship Due to Restrictive Sentences
If an individual is sentenced to imprisonment for one year or longer, they may be placed under guardianship. In such cases, the authority responsible for enforcing the sentence must apply for the individual to be placed under guardianship. Guardianship in this context aims to protect the property rights and other interests of the convict.
Voluntary Guardianship
In some situations, individuals may request to be placed under guardianship. These situations include old age, disability, inexperience, or severe illness. However, the individual must prove that they are unable to manage their affairs due to these conditions.
What is a Guardianship Case?
Appointing a guardian for an individual requires filing a guardianship case in the Civil Court of Peace. During the proceedings, if the court determines that the person needs to be placed under guardianship, it appoints a guardian to protect the individual's rights and interests. The guardian acts as the legal representative of the individual and may need to obtain court approval for certain actions.
Announcement of Guardianship Decisions
When a guardianship decision is made, it is announced in the residence area and registered locality of the individual placed under guardianship. According to Article 410 of the Turkish Civil Code:
"The decision to impose guardianship, once finalized, shall be announced in the residence area and the registered locality of the ward."
This announcement serves to prevent claims of good faith by third parties.
Who is a Guardian? Duties and Responsibilities of Guardianship
A guardian is a person responsible for protecting the personal and property rights of an individual under guardianship. Article 403 of the Turkish Civil Code states:
"A guardian is obligated to protect all interests related to the personality and property of the minor or ward and to represent them in legal transactions."
Withdrawal from Guardianship and Termination of Duty
The guardian is generally appointed for a term of two years, which can be extended by two years at a time. At the end of their term, a guardian may request to withdraw from their duties. Guardianship duties end if the guardian encounters a disqualifying condition, their term ends, they pass away, or they lose their legal capacity.
Duties and Responsibilities of a Guardian
A guardian is responsible for safeguarding the personal rights and property of the individual under guardianship. According to Article 403 of the Turkish Civil Code:
"The guardian is obligated to protect the interests of the minor or the ward concerning their personality and property and to represent them in legal transactions."
Guardians are appointed by the guardianship authority, which is the Civil Court of Peace, and their term is typically two years but may be extended. In some cases, a request for a change of guardian may arise.
Changing the Guardian
Changing a guardian is a legal process overseen by the guardianship authority. Various circumstances that arise after the appointment of a guardian may necessitate a change. Certain conditions must be met, and a petition must be filed with the court for the change of guardianship. The primary reasons for requesting a change in guardianship are as follows:
Neglect or Abuse of Duty
If a guardian neglects their responsibilities or abuses their authority, this can be reported to the guardianship authority. For instance, if a guardian mismanages the ward's property, acts against their interests, or violates their personal rights, a request for their removal can be made.
Breaches of Trust
If the trust relationship between the guardian and the ward is damaged, the removal of the guardian can be requested. For example, mistreatment or actions that undermine trust may warrant such a request.
Conflict of Interest Between Guardian and Ward
A serious conflict of interest between the guardian and the ward may lead to a court’s intervention. Such conflicts indicate that the guardian cannot represent the ward impartially, necessitating their replacement.
Guardian’s Voluntary Withdrawal
A guardian may voluntarily request to resign from their duties. This requires an application to the court, citing reasons such as age, health issues, or personal circumstances. However, the court will first ensure the ward's rights are protected by appointing a new guardian.
Emergence of Disqualifying Conditions
Guardianship ends if the guardian becomes legally incapacitated, develops severe health problems, or passes away. Similarly, if the guardian is found to have caused harm to the ward, the guardianship authority may take action to remove them.
How to Request a Change of Guardian?
A change of guardian can be initiated by filing a petition with the Civil Court of Peace. The following parties may request a change:
The individual under guardianship
The relatives of the individual under guardianship
Relevant public institutions (e.g., notaries, administrative authorities)
The supervisory guardianship authority
The petition must include reasons for the request, and evidence may be presented, such as witness testimony, documents, or expert opinions. The court will evaluate the case and decide accordingly.
Appointment of a New Guardian Following a Change
When a guardian is removed, the court promptly appoints a new guardian to ensure the ward's rights and interests are protected. According to the Turkish Civil Code, the following criteria are considered when appointing a new guardian:
Proximity
If possible, the new guardian is chosen from the family or close relatives of the individual under guardianship.
Personal Suitability
The court ensures that the chosen guardian is capable of fulfilling the responsibilities of guardianship effectively. This includes assessing their character, financial status, and background.
Preferences of the Individual Under Guardianship
If the individual under guardianship has the capacity to express their preference, their opinion regarding the choice of guardian is taken into account.
Oversight of Guardianship and Transition
Until a new guardian is appointed, the current guardian must continue performing necessary duties to protect the ward's rights. The guardianship authority supervises the transition process and ensures that the legal framework is adhered to throughout the change.
By ensuring proper management during this transition, the guardianship system aims to protect both the legal rights and the well-being of individuals under guardianship.
