POINTS TO CONSIDER IN DETERMINING THE NEEDS OF THE WARD
POINTS TO CONSIDER IN DETERMINING THE NEEDS OF A PERSON UNDER GUARDIANSHIP
In this week's column allocated to me in the newspaper, I will try to explain a very important topic to you. As you are aware, being a guardian carries significant responsibilities. I will attempt to provide information regarding the points that should be considered when determining the needs of a person under guardianship.
The guardianship authority has the power to dismiss a guardian if it observes that they are endangering the interests of the person under guardianship, even if there is no fault or intent on the part of the guardian. It is possible to dismiss a guardian due to familial, physical, social, and political reasons/inadequacies.
The grounds for the dismissal of a guardian from office are regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 483- If a guardian grossly neglects their duties, abuses their powers, engages in conduct that undermines trust, or becomes insolvent, they shall be dismissed by the guardianship authority. If the interests of the person under guardianship are endangered due to the guardian's inadequacy in performing their duties, the guardianship authority may dismiss the guardian even if they are not at fault.
As seen in Article 483 of the Turkish Civil Code, the grounds for dismissal from office are regulated in detail.
If the guardian,
a) Grossly neglects their duty,
b) Abuses their powers, or
c) Engages in conduct that undermines trust, or
d) Becomes insolvent,
they are dismissed by the Civil Court of Peace, which is the guardianship authority. The guardianship authority may dismiss the guardian only after conducting an investigation and hearing them out. The guardian may also be dismissed from their guardianship duty if it is deemed necessary, in case they are seen 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 power to dismiss the guardian from their duty.
The procedure for the dismissal of a guardian is regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 484- A person under guardianship who has the power of discernment or any interested party may request the dismissal of the guardian. The guardianship authority, having learned of the existence of a reason requiring dismissal through other means, is obliged to dismiss the guardian ex officio.
The competent court for the dismissal of a guardian is the court that appointed the guardian, which acts as the guardianship authority. The authorized court is the court of the place of residence of the person for whom a guardian has been appointed. If the place of residence of the person under guardianship is changed without obtaining permission from the court, the competent court remains the court of the former place of residence. However, if the authorized guardianship authority subsequently approves the change of residence, that is, if it approves the de facto situation, since its authority will expire on the date of approval, the competent court that will hear the requests for the dismissal of the guardian becomes the guardianship authority of the place of residence that became authorized subsequently. The request for the dismissal of a guardian is decided by the court as a result of a hearing. According to Article 485 of the Turkish Civil Code, the guardianship authority can only dismiss the guardian after hearing them. The court must collect evidence and hear the guardian. The court is not bound by the reasons put forward. During the examination, if it observes the existence of another issue that would cause the guardian's dismissal that has not been notified to it, it has the power to decide to dismiss the guardian.
The emergence of a hindrance or a reason for avoidance is regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 481- A guardian must resign from their duty if a reason hindering guardianship arises. If a reason for avoidance arises, a guardian may request to be dismissed from their duty before the end of the term; however, they must continue their duty in the presence of important reasons.
If a reason hindering guardianship arises after the appointment of the guardian, the guardian must resign from their guardianship duty. If a reason for avoidance arises, the guardian may request the Civil Court of Peace, which is the guardianship authority, to be dismissed from their guardianship duty before the end of the term; however, they must continue their duty if there are important reasons to protect the interests of the person under guardianship.
Although health needs and physical requirements are a priority, the social and cultural needs, as well as the professional and intellectual development of the person under guardianship, should be taken into account; in other words, the expenditures to be made for the person under guardianship and the money to be allocated should be determined. The most important issue is not to save the money of the person under guardianship in a bank account, but to ensure that they maintain their daily life habits in proportion to their income.
Attorney Gizem GONCE