Guardianship for Drug Addicts in Turkish Law – Atty. Ozan Soylu

In what situations can a guardian be appointed for a drug addict in Turkish law?

According to Turkish Civil Code (TMK) Art. 406, individuals who, due to alcohol or drug addiction, expose themselves or their families to the risk of destitution or poverty, or threaten the safety of others, can be restricted and appointed a guardian. However, addiction alone is not sufficient; this condition must also endanger the economic situation of the person or their family or threaten the safety of others.

Does drug addiction need to be continuous for the appointment of a guardian?

Yes, for the appointment of a guardian, drug addiction must be continuous and become a habit. Temporary or occasional drug use is not sufficient for restriction and appointment of a guardian. The addiction must become a weakness in the person’s character and show continuity.

Which court is competent in appointing a guardian for a drug addict?

The competent and authorized court for appointing a guardian to a drug addict is the civil court of peace in the place of residence of the person to be restricted. The civil court of peace acts as the guardianship authority and makes the decision for restriction and appointment of a guardian.

How is the legal capacity of a drug addict affected when appointed a guardian?

As the drug addict appointed a guardian will be restricted, their legal capacity will be limited. The person transitions from fully capable to limited incapacity. They can no longer perform legal transactions on their own; these transactions can be carried out through the guardian or with the guardian’s approval. However, the capacity to exercise strictly personal rights continues.

What are the duties of a guardian appointed to a drug addict?

The main duties of a guardian appointed to a drug addict are:

• Ensuring the personal care and protection of the restricted person
• Managing and protecting the restricted person’s assets
• Representing the restricted person in legal transactions
• Ensuring the restricted person receives treatment
• Taking necessary measures for the rehabilitation of the restricted person
• Regularly reporting to the guardianship authority

The guardian must consider the benefit of the restricted person and act diligently while performing these duties.

What powers can a guardian appointed to a drug addict use for the person’s treatment?

The guardian has the authority to take all necessary measures for the treatment of the drug addict. In this context:

• Can admit the person to a treatment facility
• Can approve necessary medical interventions
• Can ensure participation in rehabilitation programs
• Can regulate and monitor medication treatment

However, while using these powers, the guardian should also consider the fundamental rights and freedoms of the person and should not resort to measures that restrict freedom unless necessary. Permission from the guardianship authority may be required for significant medical interventions.

What are the powers and responsibilities of the guardian regarding the management of the drug addict’s assets?

The guardian is obliged to manage the assets of the drug addict diligently, like a good manager. In this context:

• Must make an inventory of the restricted person’s assets and keep records
• Must take protective measures for the assets
• Must make necessary expenditures and avoid unnecessary expenses
• Must evaluate and manage the assets in an income-generating manner
• Must obtain permission from the guardianship authority for significant dispositions
• Must regularly account for the management

The guardian must keep the restricted person’s assets separate from their own and not derive personal benefit. Otherwise, legal and criminal liability may arise.

From where does the guardian appointed to a drug addict cover the necessary expenses for the person’s treatment?

The guardian primarily covers the necessary expenses for the drug addict’s treatment from the person’s own assets. If the person does not have sufficient assets:

1. Alimony can be demanded from the person’s dependents (spouse, parents, children).
2. If the person has social security, it can be utilized.
3. Social assistance provided by the state can be benefited from.
4. As a last resort, free treatment opportunities of public institutions can be sought.

The guardian is obliged to ensure the person’s treatment using these resources.

What is the legal responsibility of a guardian appointed to a drug addict?

The legal responsibility of a guardian appointed to a drug addict is quite extensive. The guardian is obliged to show the care that a good manager should show while performing their duty. They are responsible for damages caused to the restricted person by their negligent behaviors.

The conditions required for the guardian’s responsibility are:

• An unlawful act
• Fault
• Damage
• Causal link

If these conditions are met, the guardian is obliged to compensate for the damage caused to the restricted person. Additionally, in case of abuse of duty, they may be dismissed and may also incur criminal liability.

Does the drug addict have the right to file a lawsuit against the guardian?

Yes, the restricted drug addict person has the right to file a lawsuit against the guardian. If the restricted person thinks that the guardian has abused or neglected their duty, they can complain to the guardianship authority. They can also file a compensation lawsuit for damages caused by the guardian.

However, as the restricted person’s capacity to sue is limited, permission from the guardianship authority or the appointment of a trustee may be required for them to file a lawsuit. Due to the conflict of interest between the restricted person and the guardian, in such cases, a trustee is usually appointed to file the lawsuit through the trustee.

What is the term of office for a guardian appointed to a drug addict and how can it be extended?

According to Article 456 of the Turkish Civil Code, a guardian is typically appointed for two years for a drug addict. However, this period is not fixed and can be extended. The regulation regarding the guardian’s term of office and its extension is as follows:

The guardian is typically appointed for two years. At the end of the two-year period, the guardianship authority, which is the civil court of peace, evaluates whether the guardian has properly fulfilled their duties.

If the guardian has properly fulfilled their duties and it is deemed appropriate for the interests of the person under guardianship, the guardianship authority may extend the guardian’s term of office for two years each time.

For example, if a guardian appointed to a drug addict is found successful in the evaluation made by the guardianship authority after completing the first two-year term of office, the term of office can be extended for another two years. This process can be repeated if the guardianship authority deems it appropriate.

However, according to TMK Art. 456/3, after serving for four years, i.e., after the first two-year term of office and one extension, the guardian is not obliged to accept this duty. After four years, the guardian has the right to leave the duty. In this case, the guardianship authority must appoint a new guardian.

How can the guardian appointed to a drug addict be changed?

The guardian appointed to a drug addict can be changed in the following situations:

1. If the guardian fails to properly fulfill their duties
2. If the guardian is found inadequate
3. If there are serious disagreements between the guardian and the restricted person
4. If the guardian wishes to resign by presenting an excuse
5. In case of the guardian’s death or loss of capacity

In these cases, the restricted person, their relatives, or relevant institutions can apply to the guardianship authority to request a change of guardian. The guardianship authority can make a new guardian appointment after conducting the necessary examinations.

What conditions must be met for the guardianship of a drug addict to end?

For the guardianship of a drug addict to end, one of the following conditions must be met:

1. The person recovers from drug addiction and becomes able to continue their normal life
2. The restriction decision is lifted by the court
3. The death of the restricted person

Especially if the person recovers from addiction and becomes able to continue their normal life, the restricted person or their relatives can apply to the court to request the termination of the restriction and guardianship. The court can lift the restriction and end the guardianship after conducting the necessary examinations.

What transactions can the guardian appointed to a drug addict perform alone on the person’s assets?

The guardian can make expenditures for the daily and ordinary needs of the drug addict person alone. However, permission from the guardianship authority is required for important and large-scale transactions.

Transactions that the guardian can perform alone:

• Meeting essential needs such as daily food and clothing
• Making regular payments such as rent, electricity, water
• Minor repair and maintenance works
• Necessary expenses for emergency medical interventions

However, permission from the guardianship authority is absolutely necessary for transactions such as real estate purchases and sales, large donations, and important contracts.

How is the fee of the guardian appointed to a drug addict determined?

The guardian’s fee is determined according to TMK Art. 457. Accordingly:

• The guardian can request a fee from the assets of the person under guardianship.
• The amount of the fee is determined by the guardianship authority for each accounting period, taking into account the effort required for management and the income of the managed assets.
• If the person under guardianship has no assets or if they are insufficient, the fee is paid by the state.

When determining the fee, factors such as the effort spent by the guardian, the difficulty of the work, and the status of the restricted person’s assets are taken into account. The guardianship authority determines the fee in the amount it deems appropriate.

Does the person who undertakes the guardianship of a drug addict have the right to refuse this duty?

Yes, the person who is asked to undertake the guardianship of a drug addict has the right to refuse this duty. However, this right is not unlimited.

According to TMK Art. 417, the following persons are not obliged to accept guardianship:

• Those who have completed 60 years of age
• Those who will have difficulty performing this duty due to physical disabilities or chronic illnesses
• Those who are the guardians of more than four children
• Those who already have guardianship duties
• The President, members of the Turkish Grand National Assembly, judges and prosecutors

Those other than these persons are obliged to accept guardianship unless there is a justified reason. However, even those who are obliged to accept guardianship can object by stating their reasons for rejection within 10 days from the notification of the appointment decision.

 

 

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