Guardianship Case in Turkish Law
GUARDIANSHIP IN TURKEY
Guardianship ensures the protection of minors who are not in the custody of their parents or majors who are unable to manage themselves and their property and safeguards their rights and legal security.
Minors without the custody of their parents are directly placed under guardianship. Majors who cannot manage themselves and their property are first put under legal disability and then placed under guardianship. To sum up, two main situations that require being placed under guardianship are “being minor” and “being under legal disability”.
GUARDIANSHIP BECAUSE OF BEING MINOR
In Turkish law, minors are in the custody of their parents in any case until they turn 18. That is why minors will be already protected by their parents, and therefore it is not necessary to place them under guardianship. They are only placed under guardianship unless they are in the custody of their parents.
If both parents have died or have been missing for a long time or are disentitled from custody in any way by a court order, the minor will not be in custody of their parents. The custody of the child born out of wedlock is usually given to the mother or sometimes to the father or, if is necessary for the benefit of the child, is placed under guardianship.
GUARDIANSHIP BECAUSE OF BEING UNDER LEGAL DISABILITY
People that have to be protected and guarded for the reasons stated in the Turkish Civil Code are put under legal disability with a court order. Majors who cannot protect their personal interests are put under legal disability for protection. In this case, the court appoints a guard for them or, if their parents are alive, their custody is given to them.
THE REASONS FOR BEING UNDER LEGAL DISABILITY
The reasons for being under legal disability are listed in the law one by one. For that reason, it is not possible that one is put under legal disability other than the reasons listed in the law. These reasons are;
1-GUARDIANSHIP DUE TO MENTAL ILLNESS OR MENTAL WEAKNESS
As per Article 405 of the Turkish Civil Law, “ a major who cannot perform its works or constantly needs help for its protection and care or pose a threat to others’ security because of its mental illness or mental weakness is put under legal disability.”
It is understood from this article that having a mental illness or mental weakness is not the absolute reason for being under legal disability. If a major cannot perform its works or constantly needs help for its protection and care or poses a threat to others’ safety, this major is put under legal disability. One of these three reasons should exists.
2-BEING UNDER LEGAL DISABILITY DUE TO EXTRAVAGANCE, ALCOHOL OR DRUG ADDICTION, BAD LIFESTYLE OR BAD MANAGEMENT OF PROPERTY
These reasons are provided by Article 406 of the Turkish Civil Code. A person can be under legal disability due to its extravagance, alcohol or drug addiction, bad lifestyle or bad management of its property. Along with these reasons, this person should “put itself or its family at the risk of falling into poverty and distress and therefore need constant protection and care” or “pose threat to others’ safety.
Extravagance means making extreme and unnecessary spending without calculating the income-expenditure balance. Making spending has turn into passion. Therefore, it constantly puts the person and its family in danger.
Alcohol addiction means being extremely addicted to alcoholic beverages and being unable to give up them. One does not occasionally drink alcoholic beverages but drinks constantly like a drunkard.
Bad lifestyle means exhibiting behaviors contrary to public moral and inconsistent with public order. In other words, one leads a life, disregarding moral and social values.
Bad management means the lack of interest by an individual in its property and financial matters.
3-BEING UNDER LEGAL DISABILITY DUE TO PUNISHMENT RESTRICTING FREEDOM
One will be under legal disability if it is sentenced to a punishment restricting freedom for one year or more than one year. The court responsible for executing the punishment has to inform about the situation on its own motion to the relevant guardianship authority.
When a person is sentenced to a punishment restricting freedom, whether it can perform its works is not important. Being sentenced is enough for being under legal disability.
4-BEING UNDER LEGAL DISABILITY DUE TO ONE’S OWN WISH
Article 408 of the Turkish Civil Code provides that one can request for being under legal disability if it can prove that it cannot perform its works due to its old age, disability, inexperience or serious disease.
For this, the person should make a request. The court cannot decide on it on its own motion.
THE PROCEDURE FOR BEING UNDER LEGAL DISABILITY CASES
The person is listened by the court. In case of being under legal disability due to extravagance, alcohol and drug addiction, bad lifestyle, bad management of property and one’s own wish, the court first listens the person and then decide on it. This provision aims to protect the person from possible ill-intentioned behaviors of the person’s circle and relatives and not to suffice with their claims and proofs. For other being under legal disablement reasons, it is not necessary to listen the person.
Consulting the expert; To put somebody under legal disability due to mental illness or mental weakness, the court should rely on official health board report (Turkish Civil Code art. 409/2).
The court can also listen to the person, considering the health board report.
Announcing being under legal disability decision; After the court’s decision in this regard is finalized, the decision is announced both in the residence and place of registry of the person.
Being under legal disability becomes effective only starting from the announcement date. Legal transactions with the person being under legal disability until this date will be valid.
COMPONENT COURT IN THE GUARDIANSHIP CASE
The component court in placing a person under guardianship, appointing a guard or disentitling guardianship is the civil court of peace in the place of residence of the minor or the person under legal disability.
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