Turkish civil law establishes a comprehensive system for the protection of individuals who are unable to manage their own personal and financial affairs. This system, known as vesayet in Turkish, operates as a public law institution governed by the Turkish Civil Code No. 4721 and is administered through a hierarchical structure of courts and appointed representatives. Its primary purpose is to safeguard the legal interests, personal rights, and property of those who lack the capacity to act independently, whether due to minority, mental illness, substance dependency, prodigality, or other circumstances recognized by statute. Unlike private arrangements such as power of attorney, guardianship under Turkish law is a judicially supervised regime that cannot be established by agreement between private parties and that imposes ongoing obligations on both the appointed guardian and the courts overseeing the process.
The Turkish Civil Code distinguishes between two principal forms of legal representation within the guardianship framework. The first is the guardian, known as the vasi, who is appointed to represent a person under guardianship in all matters relating to their personal affairs and property. The second is the custodian, known as the kayyım, who is appointed for more limited purposes, such as managing specific assets or carrying out particular transactions. A third mechanism, the legal advisor or yasal danışman, provides a lighter form of oversight for individuals who retain partial legal capacity but require assistance with certain categories of decisions.
Persons Subject to Guardianship Under the Turkish Civil Code
The Turkish Civil Code identifies two categories of persons who may be placed under guardianship. The first consists of minors who are not subject to parental authority. Under Article 404, every minor who does not live under the custody and legal representation of a parent is to be placed under guardianship. This situation arises when both parents have died, when parental rights have been terminated or suspended by a court, or in cases where the child has been removed from parental care through a protection order. The guardianship authority, which is the Civil Court of Peace, appoints a guardian to represent the minor until the child reaches the age of majority or is otherwise released from guardianship.
Article 404 of the Turkish Civil Code: Every minor who is not subject to parental authority shall be placed under guardianship.
The second category consists of adults who have been declared legally restricted. Turkish law specifies the grounds for restricting a person’s legal capacity in Articles 405 through 408 of the Civil Code, and these grounds are exhaustively enumerated. A restriction may not be imposed on any basis other than those listed in the statute.
Grounds for Restricting Legal Capacity
The most commonly invoked ground for restriction is mental illness or mental deficiency under Article 405. An adult who is unable to conduct their own affairs due to mental illness or mental deficiency, who requires continuous care and assistance, or who poses a danger to the safety of others may be restricted by a court order. A medical report from an official health commission is required in practice before such a restriction can be declared. The court must hear the person whose restriction is sought before issuing a decision, and the proceedings are classified as matters of public order, meaning that the court investigates the circumstances on its own motion regardless of the scope of the petition before it.
Article 405 of the Turkish Civil Code: Every adult who is unable to conduct their own affairs due to mental illness or mental deficiency, who requires continuous care and assistance, or who poses a risk to the safety of others, shall be restricted. Administrative authorities, notaries, and courts that become aware of circumstances requiring guardianship in the course of their duties are obligated to immediately notify the competent guardianship authority.
Article 406 addresses a broader category of circumstances. A person who, through prodigality, poor management of assets, alcohol or narcotic dependency, a harmful lifestyle, or vagrancy, creates a risk of driving themselves or their family into financial hardship may also be restricted. This ground is more contested in practice because the court must assess whether the person’s behavior rises to the level that justifies the serious step of restricting legal capacity. Not every instance of excessive spending constitutes prodigality within the meaning of Article 406. The court examines whether the expenditures are disproportionate to the person’s income and assets and whether they create an actual risk of destitution for the individual or their dependents.
Article 407 provides that an adult sentenced to a custodial penalty of one year or more must be restricted for the duration of their imprisonment. The authority responsible for the execution of the sentence is required to notify the guardianship court so that a guardian may be appointed to manage the restricted person’s affairs during their incarceration.
Finally, Article 408 recognizes the possibility of voluntary restriction. An adult who finds themselves unable to manage their own affairs due to old age, disability, inexperience, or serious illness may request the court to place them under guardianship. This form of restriction serves the interests of the person themselves and is initiated by their own petition rather than by a third party or a public authority.
The Structure of Guardianship Authorities
Turkish law establishes a two-tier judicial structure for the supervision of guardianship proceedings. The primary guardianship authority, known as the vesayet makamı, is the Civil Court of Peace, or Sulh Hukuk Mahkemesi. This court has jurisdiction to appoint and remove guardians, to issue or deny authorization for significant legal transactions, and to oversee the day-to-day administration of guardianship. The supervisory authority, known as the denetim makamı, is the Civil Court of First Instance, or Asliye Hukuk Mahkemesi, which functions as the appellate body for complaints against the decisions of the Civil Court of Peace and reviews those decisions on both procedural and substantive grounds.
Article 397 of the Turkish Civil Code: Public guardianship is administered by the guardianship courts consisting of the guardianship authority and the supervisory authority. The guardianship authority is the Civil Court of Peace, and the supervisory authority is the Civil Court of First Instance.
This hierarchical structure means that any party who is dissatisfied with a decision of the Civil Court of Peace may lodge a complaint with the Civil Court of First Instance within ten days of the notification of the decision. The person under guardianship, provided they possess sufficient discernment, also retains the right to complain about the acts and decisions of their guardian before the guardianship court.
Appointment and Qualifications of the Guardian
The guardian must be an adult who is not themselves subject to any form of legal restriction and who has no conflict of interest with the person under guardianship. The law expresses a preference for appointing relatives and close associates of the person under guardianship, on the basis that they are more likely to have a genuine understanding of that person’s needs and circumstances. However, the court is not bound by this preference and may appoint any suitable person, or in certain cases a public official or institutional director, when no suitable private individual is available.
Certain persons are entitled to decline the appointment as guardian. Article 417 of the Civil Code lists a number of grounds on which a person may refuse to accept the position, including age exceeding sixty years, the existence of a serious illness or disability, responsibility for more than four children or existing guardianship obligations, and professional or business circumstances that make the role impractical. A person who wishes to decline must notify the guardianship court within a prescribed period after being informed of the appointment.
The appointment of a guardian is made by the Civil Court of Peace by way of a decision that is served on the person under guardianship, their relatives, and the newly appointed guardian. The proceedings for the initial appointment of a guardian are conducted without an opposing party, meaning that the court acts on a petition and its own investigations without requiring an adversarial hearing in the conventional sense.
Duties and Powers of the Guardian
Once appointed, the guardian assumes a comprehensive set of obligations toward the person under their care. Article 403 of the Civil Code defines the guardian’s role as protecting all interests of the minor or restricted person relating to their personality and their property, and representing them in legal transactions. This dual mandate encompasses personal decisions such as healthcare, education, and place of residence, as well as financial decisions such as managing investments, collecting income, and entering into contracts.
Article 403 of the Turkish Civil Code: The guardian is obligated to protect all interests of the minor or the restricted person concerning their personality and property, and to represent them in legal transactions. The custodian is appointed to carry out specific tasks or to manage property. Unless otherwise provided, the provisions of this Code concerning guardians apply equally to custodians.
While the guardian has broad authority to act on behalf of the person under guardianship, the law imposes important restrictions on certain categories of transactions that are considered too significant to be carried out without prior judicial approval. Article 462 enumerates these transactions and requires the guardian to obtain authorization from the Civil Court of Peace before proceeding. The transactions subject to this requirement include the purchase, sale, or mortgaging of immovable property, the sale or transfer of movable assets beyond the scope of ordinary management, significant construction works, the conclusion of long-term lease agreements, acceptance or disclaimer of inheritance, settlement of ongoing legal disputes, and any act of donation on behalf of the person under guardianship.
Transactions carried out by the guardian without the required judicial authorization are voidable, and the person under guardianship or their successors may challenge such transactions upon the termination of guardianship. The guardian is personally liable for any damage caused to the person under guardianship by negligent or improper conduct during the performance of their duties.
Custodianship and the Legal Advisor
The custodian, or kayyım, serves a more limited function than the guardian. Turkish law recognizes three types of custodianship. Representative custodianship, governed by Article 426, is appointed when an adult is temporarily unable to attend to an urgent matter due to illness, absence, or similar circumstances, or when the interests of the legal representative conflict with those of the person they represent. Management custodianship under Article 427 is appointed to oversee the assets of an absent person or to manage property whose owner cannot be identified. Voluntary custodianship under Article 428 may be requested by the person themselves when they wish to have specific assets or transactions managed by an appointed representative.
The legal advisor, or yasal danışman, represents the least invasive form of judicial oversight within Turkish guardianship law. Rather than replacing the person’s legal capacity, this mechanism requires them to obtain the consent of the legal advisor for a defined list of transactions. It is typically used in cases where the person retains substantial decision-making ability but needs supervision in specific areas, such as where prodigality or poor financial management is a concern but does not yet justify full restriction.
Termination of Guardianship
Guardianship under Turkish law comes to an end when the circumstances that gave rise to it no longer exist. For minors, guardianship terminates automatically upon reaching the age of majority or through emancipation. For adults restricted on the basis of a custodial sentence, guardianship ends when the sentence is fully served. For persons restricted on medical grounds such as mental illness, termination requires a court decision supported by an official health commission report confirming that the condition has resolved. For individuals restricted due to prodigality or substance dependency, the court generally requires evidence that the problematic behavior has ceased for a sustained period of at least one year before lifting the restriction.
Upon termination, the guardian is obligated to render a final accounting to the guardianship court covering all transactions carried out during the period of guardianship. The court reviews this accounting and, if satisfied, discharges the guardian from their responsibilities. If the accounting reveals losses attributable to the guardian’s negligence or misconduct, the person formerly under guardianship or their heirs may pursue a compensation claim against the former guardian within a prescribed limitation period.
Family Lawyer in Istanbul – Attorney Ozan Soylu
Attorney Ozan Soylu is a practicing lawyer based in Istanbul, advising clients on guardianship proceedings, custodianship appointments, and related civil law matters under Turkish law. His practice covers the full scope of guardianship cases, from initiating restriction proceedings before the Civil Court of Peace to representing family members and interested parties in supervisory complaints before the Civil Court of First Instance.
For all legal matters concerning Turkish law, you can reach out to Attorney Ozan Soylu. Legal consultancy and representation services are provided with a dedicated approach for foreign nationals. To submit your questions, contact us.
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