In the course of life, not every person possesses the legal or factual maturity to make their own decisions independently and soundly. Young age, sudden or age-related mental illnesses, addictions that impair willpower, or imprisonment that restricts freedom can make it impossible for individuals to protect their own rights and manage their assets.

Our Turkish Civil Code (TMK) system has established the institution of "Guardianship" to protect individuals in such disadvantaged situations, prevent their exploitation, and ensure legal security . Guardianship is a public protective shield designed to safeguard the rights and interests of minors who are not under parental custody, or individuals who, despite being adults, are unable to manage their own affairs (those with limited legal capacity).

This comprehensive legal guide will cover the concept of guardianship, the circumstances requiring guardianship, the guardian appointment process, the rights, duties, and responsibilities of a guardian, sensitive situations requiring court permission, and how guardianship ends, all in detail.

1. What is Guardianship? What are the Differences Between Guardianship and Custody?

Guardianship is a family law institution that allows for the appointment of a representative (guardian) by the court to protect the person and property of individuals who lack the legal capacity or competence to manage themselves, and to represent them in legal matters.

In practice, of custody and guardianship are often confused with each other. However, these two legal statuses differ fundamentally in terms of both their sources and their control mechanisms.

2. What are the Circumstances Requiring Guardianship? (Turkish Civil Code Articles 404-408)

For a person to be placed under guardianship (restricted or incapacitated), at least one of the limited number of reasons listed in the law must exist. The Turkish Civil Code groups these reasons into two main categories: Minority and Reasons for Restriction.

2.1. Minority (Turkish Civil Code Article 404)

Every minor not under parental custody is placed under guardianship. A guardian must be immediately appointed by the court for minors whose parents have died, whose parental custody has been revoked, or whose parents are missing. Civil registry officials, administrative officers, or notaries are obligated to immediately report the existence of a minor not under parental custody to the competent guardianship authority when they become aware of such a situation while performing their duties.

2.2. Mental Illness or Mental Weakness (Turkish Civil Code, Article 405)

In cases where an adult is unable to manage their affairs due to mental illness (schizophrenia, advanced dementia, Alzheimer's, etc.) or mental weakness, requires constant assistance, or endangers the safety of others, guardianship is mandatory.

Critical Procedural Rule: For a restriction order to be issued due to mental illness or mental weakness, the person's condition an Official Health Board Report (Committee Report) . A judge cannot issue a restriction order based on mental health grounds without a report or solely on witness statements.

2.3. Extravagance, Alcohol or Substance Abuse, Bad Lifestyle, Mismanagement (Turkish Civil Code Article 406)

A person's addictions, gambling habits, or mismanagement of life that pose a risk of causing themselves or their family hardship and poverty constitute grounds for guardianship.

• Extravagance: Spending one's assets irrationally, excessively, and without considering the future.

• Mismanagement: Recklessly managing commercial or personal assets in a way that results in sustained losses.

2.4. Sentence to Imprisonment (Imprisonment) (Turkish Civil Code Article 407)

for one year or more is automatically placed under guardianship by law. The prison administration responsible for executing the sentence is obligated to immediately notify the competent court when the convict begins serving their sentence. The purpose of this type of guardianship is to prevent disruption to the inmate's legal and financial affairs outside of prison and to protect their rights.

2.5. Restriction Upon Request (Turkish Civil Code Article 408)

Any adult who can prove that they are unable to manage their affairs properly due to old age, disability, inexperience, or serious illness may request, with their own consent and in writing, that a guardian be appointed for them. In this case, the person's mental health is sound, but physical or experiential impossibilities exist.

3. What are the Guardianship Bodies?

The guardianship system is not simply comprised of an appointed guardian; it is backed by a very strict judicial oversight mechanism. The guardianship bodies are as follows:

3.1. Guardianship Authority (Civil Court of Peace)

It is the first and most active court in the guardianship process. The Civil Court of Peace is the court that appoints the guardian, directly supervises their actions, reviews the guardian's annual financial reports, and gives initial approval for many legal transactions the guardian will undertake (real estate sales, borrowing, etc.) .

3.2. Supervisory Authority (Civil Court of First Instance)

The highest authority that reviews appeals against decisions of the Peace Court (guardianship authority) and gives final approval to certain very important procedures explicitly authorized by law the Civil Court of First Instance.

3.3. Representatives (Guardian, Trustee, Legal Advisor)

The court chooses one of three different representation models according to the needs of the person to be protected:

                  ┌─────────────────────────────┐ │ GUARDIANSHIP REPRESENTATIVES │ └──────────────┬───────────────┘ │ ┌──────────────────────┼──────────────────────┐ ▼ ▼ ▼ [GUARDIAN] [TRUSTEE] [LEGAL ADVISOR] (General and Permanent) (Temporary or Specific (Manages the person and their property without restriction. Appointed for a specific task.) Gives approval/opinion.)

4. Differences Between Guardian, Trustee, and Legal Advisor

The scope of authority of the court-appointed representative varies depending on the degree of the person's legal capacity. The table below clarifies the boundaries between these three concepts:

5. Procedure for Appointing a Guardian and How to File a Guardianship Case?

Guardianship cases are closely related to public order, therefore procedural rules are applied very strictly.

5.1. Competent and Authorized Court

• Competent Court: The court with absolute jurisdiction in guardianship cases the Civil Court of Peace.

• Competent Court: The rule of jurisdiction is absolute in guardianship matters. The competent court the place of residence of the person to be placed under guardianship . A lawsuit cannot be filed in a court elsewhere unless the place of residence of the person under guardianship has been changed. The person under guardianship cannot change their place of residence without the permission of the guardianship authority (Turkish Civil Code, Articles 411-412).

5.2. Who Can File a Lawsuit? (Notification and Application)

A guardianship case can be initiated by the relatives of the person to be restricted (spouse, children, siblings, family members), or by a report made by any citizen to the Public Prosecutor's Office or directly to the court .

Furthermore, public officials (such as a hospital chief physician, prison director, or census officer) are legally obligated to report to the court any situation requiring restriction while performing their duties. If the court finds the report to be serious, it will initiate proceedings ex officio (automatically) .

5.3. Who can be a guardian? Whom must be chosen?

When appointing a guardian, the judge primarily considers the interests of the person to be placed under guardianship. According to Article 414 of the Turkish Civil Code, unless there are justifiable reasons preventing it, the judge the spouse or close relatives . The person to be appointed as guardian must be of legal age and must not have any impediments to guardianship.

5.4. Is Accepting Guardianship Mandatory? (Reasons for Avoiding Guardianship)

Guardianship is essentially a public duty. A person appointed as guardian by the court is obliged to accept this duty unless they have a justifiable reason. However, the legislator (Turkish Civil Code, Article 417) has granted individuals the right to refuse guardianship in certain circumstances:

• Those who have reached the age of 60,

• Those who are unable to perform this duty due to physical disabilities or chronic illnesses,

• Those who have guardians for more than four children,

• Those who already have another guardianship or trusteeship duty,

• Those who hold demanding public office, such as the President, members of the Grand National Assembly, ministers, judges, and prosecutors.

5.5. Who Cannot Be a Guardian? (Conditions that Prevent Guardianship – Turkish Civil Code Article 418)

The following individuals absolutely cannot be appointed as guardians:

• Those with limited capacity or minors,

• Those banned from public service or leading dishonorable lives,

• Those who have a direct conflict of interest or animosity with the person to be placed under guardianship,

• Judges of the relevant guardianship courts (Civil and Magistrates' Courts).

6. What are the duties, rights, and responsibilities of a guardian?

The person appointed as guardian is granted extensive powers and assumes significant legal responsibilities upon notification of the court decision. There are specific procedures they must follow both upon assuming and carrying out their duties.

6.1. Tasks to be Completed Upon Starting the Job (Record Keeping)

The guardian is obligated to keep a register of the ward's assets without delay from the moment they assume office (Turkish Civil Code, Article 438). This register is kept in the presence of a civil court official (usually the chief clerk or an appointed expert). The ward's bank accounts, real estate, vehicles, debts, and receivables are recorded in this register. Keeping this register also serves as a safeguard against future allegations that the guardian "spent the assets for themselves."

6.2. Storage of Negotiable Instruments and Valuable Items

Gold, jewelry, stocks, bonds, and important documents belonging to the restricted person shall not be kept in the guardian's personal safe, but shall be placed under protection in a bank designated by the guardianship authority (court), with the knowledge of the court.

6.3. Sale of Movable Property

Movable assets belonging to a person under guardianship that are expensive to preserve or will lose value over time (e.g., broken-down vehicles, old belongings) at auction upon the request of the guardian and the instruction of the Civil Court of Peace , and the proceeds are deposited into a fixed-term account in the name of the person under guardianship.

6.4. Fund Deposit and Management

The funds of the person under guardianship in the bank or the proceeds from the sale of assets are held in their name in a secure state bank that yields interest or in financial instruments approved by the court. The guardian cannot transfer this money to their personal account or use it as capital in their own business ventures.

6.5. Annual Reporting and Accountability

The guardian is obligated to submit a detailed annual financial report to the court at the end of each year (usually in January or February) . This report documents, with invoices and receipts, how much was taken from the ward's salary during the year and how much was spent on hospital, nursing home, or food expenses. The Civil Court Judge reviews the report and approves it if no irregularities are found.

Legal Wit: Being a guardian does not give you the right to use the incapacitated person's bank account as if it were your own wallet. Including a statement like "The incapacitated person's money was used for vacation" in the account report you submit to the court could suddenly land you in criminal court on charges of embezzlement.

7. Cases Where the Guardian Needs to Obtain Permission from the Court (Turkish Civil Code Articles 462-463)

Although the guardian represents the person under guardianship, they cannot perform every transaction unilaterally. To prevent the erosion of the person's assets, the legislator has made certain critical transactions subject to court approval. These approvals are granted in two stages.

7.1. Cases Requiring the Permission of the Guardianship Authority (Civil Court of Peace) (Turkish Civil Code Article 462)

The guardian must obtain written permission (decision) from the Civil Court of Peace before the following actions can be taken . Actions taken without permission are generally invalid :

1. Real Estate Purchase and Sale: The sale of a house or land belonging to a person under guardianship, or the purchase of real estate on behalf of a person under guardianship.

2. Sale of Movable Property Exceeding Ordinary Management Limits: The transfer of a valuable vehicle, antique, or company shares.

3. Lending and Borrowing: Taking out a loan in the name of a person under guardianship or lending money from a person under guardianship to someone else.

4. Entering into a Bill of Exchange Commitment: Signing a promissory note or issuing a check on behalf of someone with limited legal capacity.

5. Rental Agreements Exceeding One Year: Renting out the restricted person's property for an extended period or renting a house for the restricted person.

6. Filing a Lawsuit and Reaching a Settlement: Filing a lawsuit in court on behalf of a person under guardianship, accepting a lawsuit filed against them, or reaching a settlement (agreement) with the opposing party (except in emergency situations).

7. Inheritance Agreements and Inheritance Distribution: The division of an inheritance jointly owned by a person under guardianship, and the transfer of inheritance shares.

7.2. Cases Requiring Permission from Both the Guardianship and Supervisory Authorities (Turkish Civil Code, Article 463)

Some proceedings are so complex that the permission of the Magistrates' Court alone is not sufficient; the decision must also be approved by the higher court , the Civil Court of First Instance (Supervisory Authority)

• The inclusion of a person under guardianship as an unlimited liability partner (limited partner) in a company or the acquisition of a significant commercial enterprise,

• Adoption on behalf of a person with limited legal capacity , or approval for the adoption of a person with limited legal capacity,

• Guidance on the citizenship application process for a person with limited legal capacity

• Drawing up agreements regarding the liquidation of the marital property regime.

8. Legal Capacity of a Person Under Guardianship (Restricted Person)

The legal capacity of a person under guardianship is determined by their state of mental health

• Persons with Limited Capacity to Discern: All legal transactions (contracts signed, sales made) undertaken by individuals with severe mental illness and who are considered completely incapacitated are void and null and void from the outset. All transactions on their behalf must be carried out by their guardian (with court permission if necessary).

• Individuals with the Capacity to Discern but Under guardianship: Individuals who are of sound mind but are under guardianship due to extravagance, imprisonment, or their own volition "Limited Legal Capacity ." These individuals cannot undertake transactions that incur debt without the guardian's consent. Only with the guardian's approval does the transaction become valid.

• Areas of Complete Freedom: Those with limited capacity who possess the ability to discern can exercise rights that are strictly personal to them (e.g., engagement, marriage, making a will, exercising the right to sue) without needing the guardian's approval (subject to legal exceptions).

9. Termination of Guardianship and Loss of Guardianship

Guardianship relationships do not last forever; they end when the reason for the restriction ceases to exist or when there are changes in the individuals' circumstances.

9.1. Circumstances that Automatically Terminate Guardianship

• Termination of Minority: Guardianship automatically terminates without the need for any further decision when the minor reaches the age of 18 and becomes an adult

• Death: The guardianship relationship ends upon the death of the person under guardianship or their guardian. If the guardian dies, the court appoints a new guardian for the person under guardianship.

• Termination of Imprisonment: According to Article 407 of the Turkish Penal Code, upon completion of the sentence or release of a person who has been restricted due to imprisonment.

9.2. Termination by Court Decision (Guardianship Removal Case)

When the circumstances of individuals who were placed under guardianship due to mental illness, mental incapacity, extravagance, or addiction improve, they or their guardians may apply to the court to have the guardianship terminated

• To have the guardianship of those placed under restriction due to mental health reasons lifted, it is still an official health board report indicating that the reason for the restriction has ceased to exist .

• In cases of extravagance or addiction , it must be proven that the person has not engaged in any activity that would necessitate restraint for at least one year

9.3. Termination of the Guardian's Duty (Dismissal and Resignation)

Guardians are typically for a term of two years . If the guardian does not wish to continue in their role after this term, they may resign, or the court may extend the term by two years at a time.

If a guardian abuses their authority, damages the property of the person under guardianship, or falls into a situation that prevents them from serving as guardian, they may be removed from office (dismissed) by the Civil Court of Peace.

10. Frequently Asked Questions (FAQ)

1. My mother has Alzheimer's disease. What should I do to withdraw her pension and handle her hospital affairs on her behalf?

You must file a guardianship case with the Civil Court of Peace in your mother's place of residence. The court will refer your mother to a fully equipped state hospital for a medical board report. If the report states that your mother's mental health is affecting her decision-making, the court will appoint you or a suitable relative as guardian. After the decision, you will have the authority to collect her pension and represent her.

2. As a guardian, can I sell the house registered in the name of a person under guardianship without court permission?

You absolutely cannot sell it. Land registry offices, upon seeing the guardianship decision, will not process any property transfer without a clear and explicit "sales permit decision" from the Civil Court of Peace. Sales agreements made secretly or privately without permission are legally invalid and will result in legal/criminal liability for the guardian.

3. Does the guardian have the right to receive payment from the incapacitated person's assets?

Yes, there is. According to Article 457 of the Turkish Civil Code, a guardian may demand a fee from the ward's assets as compensation for their services. This fee by the Civil Court Judge , taking into account the ward's income and the size of the managed property. The fee may be a fixed amount or a proportional amount. The guardian cannot unilaterally determine the fee.

4. My brother is in prison; am I obligated to become his guardian? How does the process work?

If your sibling's prison sentence is one year or longer, the appointment of a guardian is legally mandatory. The prison administration notifies the court of this situation. The court sends invitations to family members. If you have no impediment to accepting the guardianship, the judge will appoint you. If you do not wish to accept, you can refuse the position by citing the "reasons for avoidance" listed in the law (age, health condition, etc.); in this case, the court may appoint a professional guardian from outside the prison (for example, a lawyer).

5. Can a guardian draw up a will on behalf of a person under guardianship or arrange a marriage on their behalf?

No. Actions such as marriage, engagement, making a will, or recognition "rights strictly personal ." These rights require the direct declaration of intent; a guardian cannot prepare a will on behalf of the person under guardianship or force them into marriage. If the person under guardianship has the capacity to understand, they can enter into a marriage of their own free will, but the rights to manage their assets remain with the guardian.

6. If a representative is needed temporarily for a property sale or legal action, should a guardian be appointed?

No. Unless continuous and general protection is required, the court a "guardian" (kayyım . The guardian's duties automatically end when the specific task described in the court decision is completed.

7. How long does a guardianship case take and how much do it cost?

Guardianship cases take longer to resolve depending on the time it takes for the hospital report (medical board report) to be issued. Depending on the workload at forensic medicine departments or fully equipped state hospitals, these cases typically 3 and 8 months to conclude. Application fees are fixed and not exorbitant; however, the hospital board report fee and notification expenses are covered by the advance payment.

Conclusion and Legal Assessment

Guardianship law, while safeguarding the rights of vulnerable individuals, also subjects appointed guardians to very strict financial and legal oversight. A guardian's lack of knowledge of the legal boundaries, or their tendency to dispose of assets without court permission based on the assumption that "they're my father/mother anyway," can lead to the annulment of transactions, dismissal from guardianship, and even charges of breach of trust.

The processes of initiating guardianship proceedings, following up on hospital report procedures, refusing guardianship or appealing against a guardianship decision, and most importantly, obtaining "permission to proceed" from the courts in accordance with Articles 462-463 of the Turkish Civil Code, require a high degree of technical legal knowledge. To avoid any loss of rights, prolonging the case due to procedural errors, and incurring criminal risks, conducting these processes through a specialist family law attorney is the healthiest and safest approach.