Guardianship Law in Turkey

1. Legal Basis and Scope

Guardianship law in Turkey is regulated under Articles 396 to 494 of the Turkish Civil Code (TCC). These provisions govern the functioning of the guardianship system, the individuals who may be placed under guardianship, and the guardianship authorities.

2. Grounds for Guardianship

Guardianship may be imposed in the following cases:

• Minor Age: Every minor not under parental custody is placed under guardianship (TCC Art. 404).
• Mental Illness or Weakness: Adult individuals unable to manage their affairs due to mental illness or weakness are restricted (TCC Art. 405).
• Wastefulness, Alcohol, or Drug Addiction: Persons endangering themselves or their family due to such habits are restricted (TCC Art. 406).
• Deprivation of Liberty Sentence: Adults in penal institutions may be restricted upon request or if deemed necessary (TCC Art. 407).
• Own Request: Persons who cannot manage their affairs due to old age, disability, inexperience, or serious illness may request restriction (TCC Art. 408).

3. Guardianship Authorities

The guardianship system is carried out by three main authorities:

• Guardianship Department: The judge of the peace court handles guardianship matters.
• Supervisory Authority: The civil court of first instance supervises the guardianship department’s actions.
• Guardian (Vasi): Appointed to manage the affairs of the person under guardianship.

4. Guardianship Procedure

The process begins with an application to the relevant court. The court conducts necessary examinations, issues the guardianship decision, and appoints a suitable guardian. The guardian manages the property and personal affairs of the ward and submits regular reports to the court.

5. Practical Example

For example, if a person cannot manage their affairs due to mental illness, the court issues a guardianship decision based on medical reports and appoints a family member as guardian. The guardian handles the person’s bank transactions, health decisions, and reports regularly to the court.

Guardianship Law in Germany

1. Legal Basis and Scope

Guardianship law in Germany is regulated under the Bürgerliches Gesetzbuch (BGB - German Civil Code). The guardianship system was modernized with the reform effective from January 1, 2023.

2. Types of Guardianship

In Germany, guardianship is divided into three main categories:

• Betreuung (Legal Custody): Appointed for adults who cannot manage their affairs due to health problems.
• Vormundschaft (Guardianship): Appointed for minors when parents are absent or incapable.
• Pflegschaft (Care Custody): Appointed with limited authority for specific matters, such as property management.

3. Guardianship Procedure

The process starts with an application by the individual concerned or their relatives. The court decides based on medical reports and social services opinions. The appointed guardian or legal custodian manages the person’s affairs and submits regular reports to the court.

4. Practical Example

For example, the court may appoint a social worker as legal custodian (Betreuer) for an adult with intellectual disability. This person makes health decisions, manages financial affairs, and reports regularly to the court.

Comparison of Guardianship Laws in Turkey and Germany

Topic	Turkey	Germany
Legal Basis	Turkish Civil Code (TCC)	Bürgerliches Gesetzbuch (BGB)
Types of Guardianship	Custody, Guardianship, Trusteeship	Betreuung, Vormundschaft, Pflegschaft
Grounds for Guardianship	Mental illness, minor age, addiction, etc.	Health issues, absence of parents, etc.
Guardianship Authorities	Peace and Civil Courts, Guardian	Family Court, Guardian or Custodian
Procedure Initiation	Application to court	Application or ex officio
Supervision Mechanism	Court supervision	Court supervision
International Recognition	Recognition and enforcement suits	Recognition and enforcement suits

 

 

International Application and Examples

Example 1: Recognition of a German Guardianship Decision in Turkey

A Betreuung decision issued in Germany must be recognized through a legal procedure in Turkey. The court assesses whether the decision violates Turkish public order before granting recognition.

Example 2: Validity of a Turkish Guardianship Decision in Germany

A guardianship decision made in Turkey must be recognized by German courts. The decision’s compatibility with German public order is evaluated.

Validity of German Guardianship Decisions in Turkey

The “Betreuer” appointed in Germany corresponds to the Turkish “Vasi.” Due to differences in legal systems, direct recognition is not possible; legal procedures are required for validity in Turkey.

Types of German Guardianship:

• Betreuung (Legal Custody) — corresponds to TCC Art. 403, generally for adults unable to manage affairs.
• Vormundschaft (Guardianship) — for minors, similar to guardian appointment in Turkey.
• Pflegschaft (Limited Care) — similar to trusteeship, appointed for specific tasks.

Recognition and Enforcement Process in Turkey

To validate a German guardianship decision in Turkey, the following steps are necessary:

• Filing a recognition or enforcement lawsuit according to the Turkish Civil Code and Law No. 5718 on Private International Law.
• Required Documents:
  • Original German court decision and certified translation
  • Apostille certificate
  • Identification documents (ID card, passport)
  • Proof that the decision is final in Germany

Competent Court: Civil Courts of First Instance

Importance of this Procedure

Without recognition of a German Betreuung decision in Turkey, inheritance distribution, land registry transactions, and banking operations on behalf of the individual cannot be conducted. This procedure is essential for those with assets in Turkey.

Frequently Asked Questions

• Can a Betreuer appointed in Germany sell real estate in Turkey?
  No, only after court recognition and possibly with a power of attorney.
• How long does the recognition process take?
  Typically 3 to 6 months if documents are complete.
• Is a new guardian appointed in Turkey?
  Sometimes additional court orders are required, but most transactions are possible after recognition.

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