Appointment of a guardian due to old age
The appointment of a guardian on the grounds of old age takes place upon the request submitted either by the elderly person themself or by their relatives to the civil court of peace located in the place of residence of the elderly individual.
A person who is not mentally ill but who, due to old age, finds it difficult to manage their own affairs may apply to the court and request that a guardian be appointed. In such cases, it is mandatory for the court to personally hear the elderly person. As a rule, the court is not required to request a medical board report. However, in practice, courts sometimes insist on such reports.
The request for the appointment of a guardian on the grounds of old age may also be made by the relatives of the elderly person. In order for relatives to make such a request, however, the elderly individual must suffer from mental weakness, and such weakness must:
• prevent them from managing their own affairs,
• necessitate constant assistance for their protection and care, or
• pose a threat to the safety of others.
The existence of one of these conditions must be evidenced by a medical board report. Mere old age, by itself, does not entitle relatives to request the appointment of a guardian.
Mental weakness is a different concept from mental illness. In cases of mental illness, the person lacks the capacity to make judgments altogether. Mental weakness, on the other hand, refers to a decline in comprehension and reasoning abilities due to various factors (including old age).
When relatives request the appointment of a guardian, the civil court of peace should not render such a decision solely on the basis of witness testimony or past medical records without obtaining a medical board report. This medical board report is prepared upon the court’s request and specifically answers the question of whether the individual requires the appointment of a guardian.
Notwithstanding the existence of such a report, the court may, if deemed necessary, also wish to personally hear the elderly person. A guardian is appointed for a term of two years. The court may extend this period in increments of two years.
The guardian is not authorized to perform all transactions on behalf of the elderly person. They may only handle routine daily affairs. Transactions such as the purchase or sale of real property, granting of mortgages, establishment of other real rights, transactions concerning movable property or other rights and assets beyond ordinary management, borrowing, assuming liability under negotiable instruments, withdrawal of money from banks, etc., require the permission of the guardianship authority (civil court of peace) (Article 462 of the Turkish Civil Code).
In cases such as the acquisition or liquidation of a business, entering into a partnership that entails personal liability, or becoming a shareholder in a company with significant capital, as well as entering into a contract with the person appointed as guardian, and in other circumstances stipulated by law, the approval of the supervisory authority (the Civil Court of First Instance) shall be required. (Article 463 of the Turkish Civil Code).
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John Abraham
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Alizabeth Anne
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