ARE GUARDIANS APPOINTED FOR MINORS?
CAN MINORS HAVE A GUARDIAN APPOINTED?
In the section reserved for me in this week’s newspaper, I will attempt to explain a very important topic to you. As you know, there are significant responsibilities involved in being a guardian. Upon request, it may be decided that a fee be paid to the person appointed as a guardian by the guardianship authority. I will attempt to provide information regarding whether a guardian can be appointed for minors.
The priority is to protect the best interests of the minor. Therefore, what is primarily important is that minors are under parental custody. For every minor who is not under parental custody, a guardian must be appointed by the guardianship authority. However, the most important point to note here is that the appointment of a guardian to a minor by the guardianship authority does not mean that the minor is incapacitated. A guardian may be appointed for those who are not of legal age, with the appointment taking effect upon them reaching the age of majority. The main purpose here is not to incapacitate the child, but to ensure that guardianship provisions come into effect without leaving a void once they reach the age of majority, and to prevent potential damages. Incapacitation only produces legal effects and consequences after the minor reaches the age of majority.
The guardian’s fee is regulated in detail in the Turkish Civil Code. Specifically;
Turkish Civil Code Article 419- The guardianship authority is obliged to appoint a guardian without delay. When necessary, a decision may be made to incapacitate those who have not yet reached the age of majority; however, the incapacitation decision produces effects after they reach the age of majority. Incapacitated adult children are, as a rule, not placed under guardianship but remain under parental custody.
As seen in Article 419 of the Turkish Civil Code, it is stipulated that an incapacitation decision may be issued if it is in the minor's legal interest.
Furthermore, the Civil Court of Peace may also decide that a fee be paid to the guardian. A guardian sacrifices the time they would otherwise dedicate to themselves, their family, or their business to spend time on tasks and transactions arising from their guardianship. For this reason, the Turkish Civil Code stipulates that a fee should be paid to the guardian in connection with the labor expended and the time dedicated by them. According to the relevant articles of the Turkish Civil Code, the guardian may submit a written request to the judge of the Civil Court of Peace to receive a fee. The guardianship authority is bound by the request in its decision to pay a fee to the guardian for their duties. In other words, as long as the guardian does not request a fee from the Civil Court of Peace, the judge of the Civil Court of Peace does not make a decision *ex officio* (on their own initiative). The guardianship authority, which is the judge of the Civil Court of Peace, determines the amount of the fee and the method of payment. The Turkish Civil Code stipulates that the fee to be paid shall be determined by taking into account the labor required for the management and the income of the managed assets. If there are no assets to be managed, the fee will naturally be determined by taking into account the labor expended. The fee is determined separately for each accounting period. In practice, the accounting period is one year, but if the guardianship authority has decided that there is no need for the guardian to keep books, the accounting period is considered to be two years. Depending on the court's discretion, an advance fee may be determined by the guardianship authority upon the appointment of the guardian, taking into account the affairs of the person under guardianship. In cases where more than one guardian is appointed for a person, the fee for each is determined separately based on the work they perform. Against the decisions of the judge of the Civil Court of Peace, which is the guardianship authority, regarding the setting of the fee, the guardian has the right to object to the supervisory authority within 10 days from the notification of the decision. The decisions given by the supervisory authorities are final, and there is no right to appeal them.
The guardian has the right to request all expenses incurred in relation to the guardianship from the judge of the Civil Court of Peace, which is the guardianship authority. An objection can be made to the supervisory authority against the decision of the judge of the Civil Court of Peace, which is the guardianship authority, regarding the expenses incurred by the guardian. The decision given by the supervisory authority is final, and the path to appeal is closed. The guardian also has the right to request the expenses incurred for the person under guardianship even after the guardianship relationship has ended. A debt lawsuit filed by the guardian for expenses is examined by general courts, and the competent court is determined based on the amount of the debt within the framework of general provisions.