Guardianship And Appointment Of Guardians
Guardianship is an institution that allows adult persons, in the cases listed in the law, and in some cases children, to be left to the administration of the guardianship authorities by limiting their transaction licenses for protection in order to be in their material and vital interests.
The guardianship bodies listed in the law are the guardianship offices and guardians and trustees.
Cases Requiring Guardianship
1- Smallness:
According to the Civil Code regulation, every minor who is not under guardianship is placed under guardianship. There may be different reasons why the minor is not under custody. Reasons such as the fact that the parents are unclear, have died, or the custody rights of the parents have been revoked require that the minor be placed under guardianship.
2- Restriction:
Guardianship Due to Mental Illness or Mental Weakness;
According to the Civil Code regulation, every adult who needs help with the management of his affairs or care and protection due to mental illness or weakness, or who endangers the safety of someone else, is placed under guardianship.
In order for a person to be placed under guardianship due to mental illness or weakness, a medical report must be obtained from the official medical board. This issue is not at the discretion of the judge, but is an obligation arising from the law. Before making a decision, the judge may listen to the person who is asked to be restricted, taking into account the report of the board.
Extravagance, Alcohol Or Drug Abuse, Poor Lifestyle, Guardianship Due To Mismanagement;
Every adult who is in danger of reducing himself or his family to hardship or poverty due to his extravagance, alcohol or substance abuse, poor lifestyle or mismanagement of his assets and therefore needs constant care and protection is placed under guardianship.
Essentially, everyone has the right to save without any restrictions on their assets. It is impossible for a healthy person to be placed under guardianship just because he is spending too much. According to this regulation of the law, in order for a person to be placed under guardianship, extravagance must be the result of a bad lifestyle or there must be alcohol or drug addiction. For example, it is not possible to place an adult and healthy person under guardianship to prevent excessive expenses in order to protect the inheritance rights of future heirs that may arise in the future, for example. Extravagance for restraint must have dimensions that will reduce the person himself or his family to tare.
Before making a restriction decision based on this reason, the judge must listen to the person who wants to be taken into custody.
Custody Of Freedom Due To Mandatory Punishment;
Every prisoner who receives a binding sentence of freedom for a period of one year or more is restricted. When the execution of the sentence begins, this situation is reported to the guardianship authority by the authority charged with the execution of the sentence (the execution prosecutor’s office or the prison administration) and the appointment of a guardian is provided to the prisoner.
Guardianship On Request;
Finally, the Civil Code regulates the situation of guardianship of an adult person at his own request. Accordingly, if the adult person himself is unable to manage his affairs for reasons such as old age, disability, inexperience or severe illness and needs care, he may ask for a guardian to be appointed to him.
Who Can Request A Decision On Restriction (Guardianship)?
A magistrate decides whether a person should be placed under guardianship. For this reason, applications with restriction requests in practice are called guardianship cases.
As can be clearly understood from the regulation of the law, restriction and guardianship is basically a matter of public order. In order to request the guardianship of a person, the presence of any legal benefits of the applicant is not sought. While the benefit of the person who will be restricted is taken into consideration in cases such as the person needs help to take care of himself or herself and cannot manage his/her assets, the public interest is taken into consideration in being restricted for the reason of endangering the safety of others. In the custody of the minor, the direct benefit of the minor and the indirect public interest will be taken into consideration.
In accordance with the regulation of the law on this legal benefit that needs to be protected, anyone can request the guardianship of a minor or adult. Even when faced with a situation that requires a person to be placed under guardianship due to his/her small age and mental illness, civil servants, administrative authorities, notaries and courts are obliged to immediately report this situation to the competent guardianship authority.
Restriction and appointment of a guardian is an issue that the competent authorities should take formal (spontaneous) action on, and custody cases filed are a notification (notification) of the situation to the competent authority.
Appointment Of A Guardian To The Restricted
For the person who is decided to be placed under guardianship, an “adult capable of performing this task” is appointed as a guardian. If necessary, multiple guardians can also be assigned to a restricted person to perform the task together or separately from the specified tasks. For this, the guardians to be appointed must have their consent to work together.
According to the regulations of the law, the spouse and his/her have priority in appointing a guardian. Unless there is an obstacle to guardianship, the guardianship authority must first evaluate these persons who are closest to the restriction.
Again, unless there is an obstacle, guardianship is assigned to the person who will be placed under guardianship or the person whose parents request it. That is, the person who will be placed under guardianship has the opportunity to choose his own guardian in this case.
The Court Authorized And Charged With Guardianship Affairs
The competent authority in matters such as guardianship of a person, appointment of a guardian, change of guardian and removal of guardianship is the Magistrate. The authority is vested in the Magistrate in the settlement of the minor or the restricted.
The Procedure For Appointing A Guardian
The magistrate’s office makes the necessary investigations and evaluations in accordance with the regulations and principles described above and decides on guardianship as soon as possible. If deemed necessary, it may temporarily remove the actual driver’s license of the person it is intended to restrict by taking the necessary measures immediately along with the application and appoint a representative to it.
Both the injunction decision and the final decision made as a result of the examination are notified to the population by notification. Thus, the restricted state is deducted from the annotation to the person’s population register. Transactions that bona fide third parties have made with restricted prior to the announcement are not affected.
The decision is also communicated to the appointed guardian. The person appointed to the guardianship can exercise the right to avoid guardianship within ten days from the notification. Everyone concerned has the right to appeal that the appointment is contrary to the law within ten days from the day they learn of the guardianship decision. If the guardianship authority considers the objections of the guardian or interested parties justified, it goes down the path of appointing a new guardian. If he does not see the objections in place, he reports the situation to the supervisory authority to make the necessary decision.
Reasons For Avoiding Guardianship And Situations That Prevent Guardianship
As a rule, the guardian appointed by the guardianship authority is obliged to perform this task. The law has granted individuals the right to avoid this duty in some cases. This haller;
- Persons over the age of 60,
- Those who will not be able to perform this task due to physical disability or constant illness,
- Persons who are the parents of more than four children,
- Those who have a guardian of another person,
- The President, the members of the Grand National Assembly of Turkey and the Council of Ministers, members of the profession of judge and prosecutor
- Such cases are not an obstacle to guardianship, and if they wish, they can accept the position of guardian. However, they have the right to refuse the task in accordance with the circumstances listed.
Situations That Prevent Guardianship Are;
- Do not be restricted; a person under guardianship cannot be appointed as a guardian for someone else.
- Those who are banned from public service or lead a life without dignity,
- Persons who have a significant conflict of interest or hostility between the person under guardi decship and,
- Judges of the relevant guardianship offices cannot be appointed as guardians.