Guardianship Appointment Procedure

The appointment of a guardian is part of the institution of guardianship regulated under the Turkish Civil Code and refers to the appointment of a representative by the court for the protection of individuals who are unable to manage their personal or financial affairs independently and properly.

A guardian is responsible for:

protecting the personal rights of the ward,
managing the ward’s assets,
conducting legal transactions on behalf of the ward,
representing the ward when necessary.

Pursuant to Article 403 of the Turkish Civil Code, a guardian is responsible for ensuring the care of the restricted person and protecting his or her interests.

Legal Basis of Guardianship Appointment

The institution of guardianship and the appointment of guardians are regulated under Articles 396 et seq. of the Turkish Civil Code No. 4721.

Within this framework:

Guardianship Authority: Civil Court of Peace (Sulh Hukuk Mahkemesi)
Supervisory Authority: Civil Court of First Instance (Asliye Hukuk Mahkemesi)

Grounds Requiring the Appointment of a Guardian

The Turkish Civil Code allows individuals to be placed under guardianship and to have a guardian appointed in certain circumstances.

1. Mental Illness or Mental Weakness (Article 405 TCC)

A restriction order may be issued where, due to mental illness or mental weakness, a person:

is unable to manage his or her affairs,
requires continuous assistance,
poses a danger to himself/herself or others.

Examples

Advanced-stage Alzheimer’s disease
Inability to manage assets due to dementia
Inability to provide self-care due to schizophrenia

In such cases, an official medical board report is mandatory. According to the Court of Cassation, a report issued by a single physician is insufficient. Article 409 of the Turkish Civil Code expressly requires a medical board report.

2. Extravagance, Addiction, or Mismanagement (Article 406 TCC)

A restriction order may be issued where a person, due to:

alcohol addiction,
drug addiction,
excessive extravagance,
an improper lifestyle,
mismanagement of assets,

causes serious financial hardship to himself/herself or his/her family.

Examples

Consuming family assets through continuous gambling
Being unable to support one’s family due to severe alcohol addiction
Elderly individuals who repeatedly become victims of fraud

The Court of Cassation requires not merely unusual expenditures but conduct that seriously jeopardizes the individual’s financial security.

3. Long-Term Imprisonment (Article 407 TCC)

Persons sentenced to imprisonment for one year or more may be placed under guardianship.

Example

Appointment of a guardian to manage the immovable property of a person sentenced to five years’ imprisonment.

The correctional institution notifies the guardianship authority of the convicted person’s situation.

4. Guardianship Upon the Person’s Own Request (Article 408 TCC)

A person may request to be placed under guardianship if he or she believes that, due to:

old age,
disability,
serious illness,
inexperience,

he or she is unable to manage personal affairs.

Examples

An elderly person who has suffered a stroke and is unable to conduct banking transactions
A visually impaired person living alone who cannot manage official procedures

5. Guardianship Due to Minority

Every minor who is not under parental custody is placed under guardianship.

This principle is also clearly recognized in the case law of the Court of Cassation.

Who May Be Appointed as a Guardian?

Pursuant to Articles 413 et seq. of the Turkish Civil Code, a guardian must:

have legal capacity,
be honest and trustworthy,
possess the physical and mental ability required to perform the duty.

In practice, courts generally prioritize close relatives.

Order of Preference

Spouse
Mother and father
Children
Siblings
Other close relatives

However, individuals whose interests conflict with those of the ward cannot be appointed as guardians.

Example

The appointment of a sibling as guardian may be denied if that sibling seeks to transfer the ward’s immovable property into his or her own name.

How Is a Guardianship Appointment Action Filed?

Competent Court

The competent court in guardianship appointment proceedings is the Civil Court of Peace located in the place of residence of the person whose restriction is sought.

Who May Apply?

Applications may be made by:

close relatives,
the Public Prosecutor’s Office,
hospitals,
care institutions,
relevant public authorities.

Documents Required for the Application

In practice, the following documents are generally submitted:

population registry records,
medical board reports,
hospital records,
witness statements,
social investigation reports.

Court Examination Procedure

The court:

hears the person whose restriction is requested,
examines medical reports,
orders an investigation into social and economic circumstances,
may request inquiries from law enforcement authorities when necessary.

In cases based on mental illness, the medical board report constitutes the primary evidence.

Appointment of a Temporary Guardian

In urgent situations, the court may appoint a temporary guardian.

Examples

Risk of bank accounts being emptied
Urgent need for surgical procedures
Necessity of protecting assets

In such circumstances, the court provides temporary protection until a final decision is rendered.

Restriction and Appointment of a Guardian

At the conclusion of the proceedings, the court may decide:

to restrict the individual,
to place the individual under guardianship,
to appoint an appropriate person as guardian.

Once the decision becomes final, it is recorded in the population registry and the necessary publication procedures are carried out.

Powers and Limitations of the Guardian

Although the guardian is the legal representative of the ward, the guardian may not freely perform all legal acts.

Certain transactions require prior authorization from the Civil Court of Peace.

Transactions Requiring Court Approval

Sale of immovable property
Obtaining loans
Long-term lease agreements
Renunciation of inheritance
Negotiable instrument commitments

These transactions cannot be carried out without court approval.

Important Principles in Light of Court of Cassation Case Law

Requirement of a Medical Board Report

According to the Court of Cassation, issuing a guardianship order based on mental illness without a fully authorized medical board report constitutes grounds for reversal.

Restriction Must Be a Measure of Last Resort

The Court of Cassation recognizes that guardianship restricts an individual’s sphere of personal freedom and should therefore be applied only when necessary.

In particular, old age alone is not sufficient grounds for guardianship.

Guardianship Proceedings Concern Public Order

The Court of Cassation considers guardianship proceedings to be matters of public order.

Accordingly, the court may:

investigate evidence ex officio,
conduct examinations on its own initiative,
request any documents it deems necessary.

Common Examples of Guardianship Appointments in Practice

Frequently encountered examples include:

Appointment of a child as guardian for a parent suffering from Alzheimer’s disease
Appointment of a spouse as guardian for an imprisoned individual
Appointment of a parent as guardian for a severely intellectually disabled person
Temporary guardianship for an individual who loses consciousness following intensive care treatment

Conclusion

The appointment of a guardian is not merely the granting of representative authority; it is an important legal institution that ensures the protection of an individual’s rights and interests under state supervision.

Guardianship appointments are particularly significant in cases involving:

Alzheimer’s disease,
dementia,
severe disabilities,
mental illnesses,
long-term imprisonment.

For this reason, both procedural requirements and the jurisprudence of the Court of Cassation must be carefully considered throughout guardianship proceedings.

Frequently Asked Questions

What is the appointment of a guardian?

It is the appointment by a court of a representative to protect a person who is unable to manage his or her own affairs.

Which court handles guardianship appointments?

The competent court is the Civil Court of Peace in the place of residence of the person whose restriction is sought.

Can a guardian be appointed for a person with Alzheimer’s disease?

Yes. A guardian may be appointed if supported by a medical board report.

Can a guardian sell immovable property?

Yes, but only with the approval of the Civil Court of Peace.

Is a guardian appointed for every elderly person?

No. Old age alone is insufficient. It must be proven that the person is unable to manage his or her affairs.

Legal Assistance in Guardianship and Guardian Appointment Proceedings

Guardianship appointment proceedings require technical expertise in matters such as the evaluation of medical reports, proving the grounds for guardianship, obtaining court authorizations, and ensuring the proper exercise of a guardian’s powers.

Accordingly, having the process conducted by a lawyer experienced in family law and personal status law is important in order to prevent potential loss of rights.