What is Legal Advisory in Turkey?

Who is a Legal Advisor?

A legal advisor is appointed for individuals who do not have full legal capacity under the Turkish Civil Code but do not have sufficient reasons to be placed under guardianship. These individuals are provided with guidance, especially in financial transactions and legal dealings. The advisor is responsible for protecting the interests of the assigned individuals and assisting them in their legal matters.

Why is a Legal Advisor Appointed?

The reason for appointing a legal advisor is that individuals do not have full capacity to carry out legal transactions on their own. However, these individuals are not completely incapacitated to the extent that they require full guardianship. In this case, a legal advisor is appointed to help individuals make correct decisions in legal processes and to protect their rights.

Who is a Legal Advisor Appointed to?

A legal advisor is generally appointed to adults who do not require restriction but need protection. These individuals typically include those who cannot fully protect their rights due to mental or physical disabilities or those who lack sufficient life experience.

How is an Advisor Appointed?

The appointment of a legal advisor occurs through a court decision. The court evaluates the individual’s situation and decides whether the appointment of a legal advisor is necessary. The appointment process generally stems from a need related to the individual’s legal transactions.

Is a Legal Advisor a Guardian?

A legal advisor is not a guardian. Legal advisory and guardianship are two separate legal institutions regulated with different provisions and purposes in the Turkish Civil Code. While a legal advisor is appointed to protect individuals’ interests in certain transactions, a guardian is responsible for managing the overall life and legal transactions of the person under guardianship.

Differences Between a Legal Advisor and a Guardian

Functions:

Legal Advisor: Provides guidance and advice in certain legal transactions. The advisor is consulted only in specific matters of decision-making.
Guardian: Manages the general life and all legal transactions of the person under guardianship. The guardian acts as a representative in almost all legal and financial transactions.

Reasons for Appointment:

Legal Advisor: Appointed because the person does not have full capacity but is not completely incapacitated to require full guardianship.
Guardian: Typically appointed due to the person being completely incapacitated (e.g., due to mental illness) and the role covers the individual’s entire life.

Scope of Authority:

Legal Advisor: Has limited authority and provides advice only for specific transactions.
Guardian: Has a broad scope of authority, covering many aspects of the individual’s life.

What Are the Types of Legal Advisory?

The appointment of a legal advisor is regulated within the framework of Article 429 of the Turkish Civil Code No. 4721 and consists of two types: voting advisory and management advisory.

1. Voting Advisory:

Voting advisory means that the legal advisor has the authority to provide opinions in the above-mentioned transactions. The advisor’s consent or approval is not required to carry out these transactions. However, transactions conducted without consulting the legal advisor are subject to unilateral nullity, meaning the transaction may be annulled.

2. Management Advisory:

In management advisory, the legal advisor is authorized in management matters. This means the legal advisor can perform the above-mentioned transactions independently. The legal advisor acts according to their will and does not require the consent or approval of the person being advised.

Authorities and Responsibilities of the Legal Advisor

The authority of the legal advisor varies depending on the type of appointment. A legal advisor appointed as a voting advisor must obtain permission before initiating the relevant case, and the process is conducted with this permission. A legal advisor appointed as a management advisor is considered a legal representative concerning the assigned asset value and has the authority to initiate and manage cases. However, if the subject of the case is not related to the management of the asset, it is subject to the permission and opinion of the guardianship authority.

Marriage and Legal Advisory

Within the framework of the institution of marriage, spouses can act as legal representatives in transactions related to the assets of individuals with limited legal capacity. This allows married couples to have the authority to initiate and manage cases on behalf of individuals with limited legal capacity. However, in cases related to personal rights, individuals with legal advisors can initiate and conduct cases personally without the need for permission from their advisors.

Which Group Do Individuals with Legal Advisors Belong To?

Individuals with legal advisors generally belong to the group of “persons with limited legal capacity.” This group includes individuals who are not fully capable and need legal advisory for certain transactions. The role of the legal advisor is to guide these individuals in specific transactions to prevent wrong or harmful decisions.

Duration of Legal Advisory

The duration of the appointment of a legal advisor varies depending on the purpose of the appointment and the conditions set by the court. Generally, the legal advisor is appointed until a specific legal transaction or process is completed. However, this duration can be extended or the advisory terminated if there is a change in the individual’s situation or if more protection is needed. The legal advisory period starts with a court decision and ends with another court decision.

What Can Individuals with Legal Advisors Do?

Individuals with legal advisors can perform many legal transactions under the guidance of their advisors. These transactions include selling property, signing contracts, and initiating lawsuits. However, the approval and guidance of the advisor are essential during these transactions.

What Can Individuals with Legal Advisors Not Do?

Individuals with legal advisors cannot perform legal transactions independently without the guidance or approval of their advisors. Their authority to acquire property, borrow, and sometimes engage in legal transactions is limited. These restrictions apply only to the advisory-related matters, and transactions conducted without the advisor’s approval may be considered invalid.

Frequently Asked Questions:

Can a Legal Advisor Act Alone?

A legal advisor does not have the authority to act independently on behalf of the person they are appointed to. However, if the legal advisor is explicitly granted representative authority, they can perform legal transactions.

Is a Legal Advisor a Legal Representative?

A legal advisor is generally not considered a legal representative. However, in certain situations and with limited authority, a legal advisor may function as a legal representative.

Can an Individual with a Legal Advisor Become a Civil Servant?

The existence of a legal advisor does not prevent a person from becoming a civil servant. Legal advisory does not affect a person’s eligibility to become a civil servant.

Can an Individual with a Legal Advisor Take Out a Loan?

A person with a legal advisor cannot act like a general guardian; therefore, the approval of the legal advisor may be required for taking out a loan.

Who Can Be a Legal Representative?

Legal representatives are usually selected from lawyers, notaries, or other authorized individuals. These individuals have special authority to represent individuals in legal transactions.

Is Notification Made to the Legal Advisor?

Notification is not made directly to the legal advisor; however, the legal advisor should be informed about notifications made to the individuals they represent.

Can an Individual with a Legal Advisor File a Lawsuit?

An individual with a legal advisor can file a lawsuit in some cases with the advisor’s consent. However, this depends on the advisor’s approval, and transactions conducted without the advisor’s consent may be considered invalid.

How is Legal Advisory Terminated?

Legal advisory can be terminated by a court decision or in accordance with legal regulations. This process generally occurs when the reasons for the advisory are eliminated.

Can a Legal Advisor Withdraw Money from the Bank?

A legal advisor does not have the authority to withdraw money from the bank on behalf of the assigned person. While minor daily needs might be met without the advisor’s intervention, significant financial transactions conducted without the advisor’s participation are considered invalid.

 

For further assistance or consultation on this matter, you can contact us.