Appointment of Guardians for the Elderly in Turkey
Old age may bring some legal requirements. If an elderly parent becomes unable to manage their affairs due to mental or physical incapacity, a guardian may need to be appointed to assist them. This article examines the legal aspects of appointing a guardian for an elderly parent.
What is a Guardian?
A guardian is a person appointed by the court with the authority to manage the property of the ward and perform legal transactions on their behalf. The ward is referred to as the client.
When is it Necessary to Appoint a Guardian for Elderly Parents?
A guardian may need to be appointed for elderly parents in the following situations:
Mental illness: If your father cannot make his own decisions or manage his affairs due to Alzheimer’s or another mental illness.
Physical incapacity: If your father cannot take care of himself or perform daily tasks due to paralysis, being bedridden, or another physical disability.
Old age: If your father is very old and mentally or physically weakened, he may have difficulty making his own decisions and managing his affairs.
How to Appoint a Guardian?
To appoint a guardian, the following steps should be followed:
Submitting a Petition: A family member or a lawyer on behalf of the person to be placed under guardianship submits a petition containing the guardianship request to the relevant court.
Evaluation: The court evaluates the guardianship request and the condition of the client. If necessary, a medical expert or psychologist prepares a report on the client’s mental and physical condition.
Decision Making: After evaluating all the evidence, the court decides to place the client under guardianship and appoints a guardian.
Can a Guardian be Appointed by a Notary?
The only authority for appointing a guardian is the Civil Court of Peace. Therefore, a guardian cannot be appointed by a notary.
Important Items to Include in the Petition
In the process of appointing a guardian for elderly parents, some important items that may be included in the guardianship petition and court decision are:
Reasons for Guardianship: The petition should clearly state the reasons why your mother or father needs to be placed under guardianship. These reasons may include mental illness, physical incapacity, and mental or physical weakening due to old age.
Guardian Candidate: The petition should indicate who is considered for appointment as a guardian. This person can be a family member, a friend, or another suitable person.
Guardian’s Powers: The court decision should clearly state the powers of the guardian. These powers may include managing the property, conducting legal transactions, and making health decisions. The scope of the powers may vary depending on the condition of your father.
Accountability: The decision should state that the guardian is obliged to regularly report financial transactions and other activities to the court and the client’s legal representative. The reporting period is usually one year.
Who Can Be a Guardian?
A guardian can be a family member, a friend, or anyone else suitable for appointment, provided they are fully competent. The court considers the interests of the client when selecting the guardian and ensures that the guardian is honest, reliable, and capable of meeting the client’s needs.
Who Cannot Be a Guardian?
According to Turkish Civil Code Article 418, the following persons cannot be guardians:
Persons under legal disability.
Persons banned from public service or living a dishonorable life.
Persons whose interests significantly conflict with the client’s interests or who have enmity with the client.
Judges of the relevant guardianship offices.
Who Can Refuse to Be a Guardian?
According to Turkish Civil Code Article 417, the following persons may refuse guardianship:
Those who are sixty years old.
Those who can perform this duty with difficulty due to physical disabilities or chronic illnesses.
Those who have more than four children.
Those who already have a guardianship duty.
The President, members of the Turkish Grand National Assembly, vice presidents, ministers, judges, and prosecutors.
Guardian’s Duties:
A guardian has a series of duties, such as managing the client’s property and performing legal transactions on their behalf. These duties include:
Providing the necessary money for the client’s daily needs (budget management).
Protecting and managing the client’s property (asset management).
Performing legal transactions on behalf of the client (representation).
Taking necessary steps to meet the client’s medical and social needs (health and social service direction).
Protecting the client’s rights and interests (legal protection).
Guardian’s Accountability:
A guardian must submit an accountability report to the court and the client or the client’s legal representative every year, providing information on activities related to the client’s property.
Protection of Client’s Rights:
In the process of appointing a guardian, it is essential to protect the rights of the elderly. Therefore, the following points should be considered:
Approval of the Person to be Restricted: If possible, it is important to involve your father in the guardian appointment process and obtain his approval. However, if your father cannot give approval due to mental illness or incapacity, this situation should be reported to the court.
(In the last part of our article, an example of a decision overturned due to not hearing the father to be restricted is given.)
Least Restrictive Intervention: The court should prefer the least restrictive intervention considering your father’s abilities. In other words, a guardian should be appointed in a way that preserves your father’s independence as much as possible, and the powers should be determined accordingly.
Continuous Monitoring of the Client: The court regularly monitors the guardian’s activities and intervenes if necessary. Family members should also monitor the guardian’s activities and report any issues to the court.
How Long Can the Guardianship Duty Last?
According to Turkish Civil Code Article 456, a guardian is usually appointed for a period of two years. However, the guardianship authority can extend this period by two years each time if necessary. The guardian can exercise the right to refuse guardianship after four years. In this case, a new guardian may need to be appointed.
Sample Petition for Appointing a Guardian for Elderly Parents
T.C. ISTANBUL CIVIL COURT OF PEACE
PLAINTIFF: [Your Name Surname]
T.C. Identity No: [Your T.C. Identity Number]
Address: [Your Address]
Phone: [Your Phone Number]
DEFENDANT: None
SUBJECT: Request for Appointment of a Guardian
Person for Whom a Guardian is Requested: [Elderly Person’s Name Surname]
T.C. Identity No: [Elderly Person’s T.C. Identity Number]
Address: [Elderly Person’s Address]
EXPLANATIONS:
I, the plaintiff [Your Name Surname], am [state your relationship] of [Elderly Person’s Name Surname]. Due to old age, [Elderly Person’s Name Surname] is not in a position to manage his/her affairs and property. This situation makes it difficult to protect [Elderly Person’s Name Surname] both materially and morally.
For this reason, I request the restriction of [Elderly Person’s Name Surname] and the appointment of a guardian.
As a guardian:
Myself
[State the names, surnames, and T.C. identity numbers of other persons you want to be appointed as guardians]
I recommend.
[Briefly explain what duties the persons you want to be appointed as guardians will undertake.]
EVIDENCE:
Population Registration Example
Doctor’s report showing the health status of [Elderly Person’s Name Surname]
Population registration examples of the persons you want to be appointed as guardians
RESULT AND REQUEST:
For the reasons explained above;
The restriction of [Elderly Person’s Name Surname],
The appointment of myself and [State the names and surnames of other persons you want to be appointed as guardians] as guardians,
I respectfully request and demand a decision.
[Date]
[Your Name Surname]
[Your Signature]
Appendix:
Example Supreme Court Decision on Appointing a Guardian for Elderly Parents
(…) After it was understood that the appeal request was within the time limit, all the papers in the file were read, and the necessary consideration was given:
In the lawsuit petition, the plaintiff claimed that his father H.. K.. did not have mental balance, lost 92% of his bodily functions, was sick and old, and could not manage his affairs, and requested his restriction. The court decided that there was no need to appoint a guardian for H.. K…
According to the documents in the file, the evidence on which the decision is based, and the legal reasons, especially since there was no mistake in the assessment of the evidence, other appeal objections are unfounded.
However;
In the lawsuit petition, it was claimed that in addition to the mental illness of H.. K.., he could not manage his affairs properly due to old age and severe illness, and a guardian was requested in accordance with Article 408 of the Turkish Civil Code.
During the trial, neither was H.. K.. heard regarding the request for voluntary restriction, nor was there any research or evaluation regarding Article 408 of the Turkish Civil Code in the decision.
Since the provisions regarding guardianship concern public order, the court should conduct research and examination in this regard on its own, hear the person to be restricted, ask the parties for their evidence, collect and evaluate all the evidence if they present any, and make a decision accordingly. However, it was not correct to make a decision with insufficient research and incomplete examination.
For this reason, the establishment of the written provision without considering the principles explained above is inappropriate, and the appeal objections are valid for these reasons. The decision was unanimously overturned on 13.05.2014 in accordance with Article 428 of the Code of Civil Procedure. (…) Case 2014/4971 Decision 2014/8797 Date 13.05.2014
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Appointment of Guardians for the Elderly in Turkey
