WHICH CIRCUMSTANCES MAY CONSTITUTE ACTIONS BY THE GUARDIAN THAT UNDERMINE TRUST?
WHICH SITUATIONS MAY MEAN THE GUARDIAN HAS ENGAGED IN CONDUCT THAT UNDERMINES TRUST?
In this week's column allocated to me in the newspaper, I will try to explain a very important issue. As you know, being a guardian carries significant responsibilities. I will try to provide information on which situations might imply that the guardian has engaged in conduct that undermines trust.
The grounds for the dismissal of a guardian from their duty are regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 483- If the guardian gravely neglects their duty, abuses their authority, engages in conduct that undermines trust, or falls into insolvency, they shall be removed from office by the guardianship authority. If the interests of the person under guardianship are endangered due to the guardian’s incompetence in performing their duties, the guardianship authority may remove the guardian from office even if they are not at fault.
As can be seen in Article 483 of the Turkish Civil Code, the grounds for dismissal from office are regulated in detail.
If the guardian,
a) Gravely neglects their duty,
b) Abuses their authority, or
c) Engages in conduct that undermines trust, or
d) Falls into insolvency,
they are removed from office by the Peace Civil Court, which is the guardianship authority. The guardianship authority may only remove the guardian from office after conducting an investigation and hearing them. A guardian may also be removed from their guardianship duties if it is deemed necessary upon observing that they pose a risk due to their inability to protect the interests of the person under guardianship. In the event that one of the situations listed above occurs, the judge of the Peace Civil Court, which is the guardianship authority, has the authority to remove the guardian from their duty.
It is clear that while performing their duties, the guardian must primarily protect the interests of the person under guardianship. The Court of Cassation has established evaluation criteria to determine whether a guardian is working diligently.
• Whether they maintain a harmonious relationship with the person under guardianship that is not based on domination,
• Whether they take the necessary measures for the happiness and development of the person under guardianship,
• Whether they regularly comply with the instructions of the guardianship authorities,
• Whether they ensure that the living standards of the person under guardianship are most appropriate for their income,
can be cited as examples of these criteria.
The Turkish Civil Code accepts that a guardian is neglecting their duty only if they are at fault. If there is no grave neglect, the Peace Civil Court, acting as the guardianship authority, limits itself to warning the guardian. If the guardian does not fulfill their duties despite the warning, they must be removed from office. Situations such as the guardian’s negligence in arranging non-life-threatening health check-ups or treatment for the restricted person or minor, failing to take interest in their schooling, failing to provide the necessary cooperation and coordination with their teachers, failing to perform tasks and procedures that facilitate the personal development of the restricted person or the activities permitted by the court, failing to keep records despite a court decision, or keeping the person’s money on themselves instead of depositing it into a bank account are considered grave neglect of duty. The authority to decide whether the guardian has neglected their duty belongs to the guardianship authority. It is possible to appeal this decision to the supervisory authority.
The abuse of authority by the guardian can manifest as performing an act or transaction to the detriment of the person under guardianship, or as failing to perform an act or transaction to the benefit of the person under guardianship. Examples of situations where a guardian abuses their authority include: the guardian using the money of the person under guardianship for themselves, depositing it into their own account, performing transactions subject to the permission of guardianship authorities without obtaining such permission, making unnecessary or excessive donations, or performing a legal transaction while knowing they have no authority to do so. In order to speak of an abuse of authority, the guardian’s conduct must be intentional. The guardian performing a transaction for which they have no authority is also evaluated within the scope of abuse of authority.
It is said that the guardian has engaged in conduct that undermines trust in situations where they cannot protect the rights and interests of the person under guardianship, do not properly supervise their health and safety, cause them to be unhappy and unhealthy, or create risks. The guardian’s mismanagement of the frailties and/or weaknesses of the person under guardianship is also considered one of these reasons.
In a decision rendered by the Court of Cassation; a guardian repeatedly taking their diabetic ward, who loves ice cream, to an ice cream parlor.
The guardian engaging in conversations and behaviors that cause the person under guardianship to feel uneasy and insecure—for example, meeting constantly and intimately with a person whom the ward holds a grudge against, doing so in a way that disturbs the peace and tranquility of the ward, or using items purchased for the ward for themselves—is accepted as grounds for dismissal, even if such behaviors, when taken alone, might not seem like abuse and would not constitute a problem if the person were not under guardianship, provided these acts are done intentionally.
Attorney Gizem GONCE