WHICH SITUATIONS MAY CONSTITUTE AN ABUSE OF A GUARDIAN'S AUTHORITY?
WHICH CIRCUMSTANCES MAY CONSTITUTE AN ABUSE OF AUTHORITY BY A GUARDIAN?
In this week's column allocated to me in the newspaper, I will try to explain a very important topic to you. As you know, being a guardian entails significant responsibilities. I will attempt to provide information regarding which circumstances might mean that a guardian is abusing their authority.
The grounds for the removal of a guardian from office are regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 483 - A guardian shall be removed from office by the guardianship authority if they severely neglect their duties, abuse their authority, engage in conduct that undermines trust, or become insolvent. If the interests of the person under guardianship are endangered due to the guardian's inability to perform their duties, the guardianship authority may remove the guardian even if there is no fault on their part.
As can be seen in Article 483 of the Turkish Civil Code, the grounds for removal from office are regulated in detail.
If the guardian,
a) Severely neglects their duties,
b) Abuses their authority, or
c) Engages in conduct that undermines trust, or
d) Becomes insolvent,
they are removed from office by the Civil Court of Peace, which is the guardianship authority. The guardianship authority may only remove the guardian after conducting an investigation and hearing them out. The guardian may also be removed from their guardianship duties if it is deemed necessary, in the event that they are found to pose a risk due to their inadequacy in protecting the interests of the person under guardianship. In the event that one of the situations listed above occurs, the judge of the Civil Court of Peace, which is the guardianship authority, has the authority to remove the guardian from office.
It is clear that while the guardian is performing their duty, the interests of the person under guardianship must be protected primarily. Criteria for evaluation have been established by the Court of Cassation to understand whether the guardian is working diligently.
• Whether they are in 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 fulfill 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 such reasons.
The Turkish Civil Code accepts that a guardian neglects their duty only if they are at fault. If a state of severe neglect does not exist, the Civil Court of Peace, as the guardianship authority, suffices with issuing a warning to the guardian. If the guardian does not fulfill their duty despite the warning, the guardian must be removed from office. A guardian's negligence in arranging non-life-threatening health checks or treatments for the restricted person or minor, lack of interest in their schooling, failure to provide the necessary cooperation and coordination with their teachers, failure to carry out acts and transactions that facilitate the personal development of the restricted person or the activities permitted by the court, failure to keep records despite a court order, keeping the person's money on themselves instead of depositing it in a bank, etc., are considered severe neglect of duty. The authority to decide whether the guardian has neglected their duty belongs to the guardianship authority. It is possible to file an objection against this decision with the supervisory authority.
A guardian's abuse of authority may take the form of performing an act or transaction to the detriment of the person under guardianship, or it may take the form of failing to perform an act or transaction that would be 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 permission, making unreasonable and excessive donations, or performing a legal transaction while knowing they do not have the authority to do so. For an abuse of authority to be claimed, the guardian's behavior must be intentional. A guardian performing an act for which they lack authority is also evaluated within the scope of abuse of authority.