2010: Legal capacity and proxy decision making
Issues relating to the loss of legal capacity
The following summary selectively highlights legal capacity issues pertaining to adult persons with mental weakness or mental illness due to medical reasons. Simply put, these situations lead to various degrees of judicial restriction of legal capacity for those with such conditions. This situation also calls for the help of others, such as guardians (vasi), curators (kayyim) or legal advisors (yasal danisman), all appointed by the courts. However, guardians and the like are not only appointed for adults with mental problems (Turkish Civil Code = Türk Medeni Kanunu No. 4721, dated 22.11.2001 = TMK, Art. 405). Indeed, there are also other legislative reasons for an individual to lose his/her legal capacity either temporarily or permanently. This loss basically arises from judicial (court ordered) prevention of the person, from “exercising” his/her rights (fiil ehliyeti). The aim is to prevent the person from causing harm to him/herself, to his/her family and/or if needed to society. Although all these issues are covered by TMK, these other reasons, as stated, shall not be examined in this paper.
The provisions of TMK regarding the administration of guardianship (vesayet, TMK Arts. 438 494) primarily deal with issues of legal representation, particularly in financial matters.
According to Turkish law, depending upon the severity and urgency of the given situation, the court-appointed person may be for a wide range of daily issues a guardian (vasi), for urgent, specific, temporary issues a curator (kayyim), or in cases of mild mental difficulty, simply a legal advisor (yasal danisman). However, the brief explanations below shall refer mainly to guardians (vasi).
Definitions and use of terms
However, first, it may be helpful to consider the definition of certain terms and how they are used in the Turkish legal context. Although TMK refers to “mental illness” in various provisions, there is no definition of mental illness in TMK. Not every mental disorder which may be defined as a mental illness by medical science is to be understood as a mental illness in the meaning of TMK. What is legally relevant within the meaning of TMK is the issue of the existence or the non-existence of the power of judgement at a given time when a person enters into a legal transaction or is involved in a legal act. Not all mental illnesses result in the lack of the power of judgement of the person with the mental illness. It is also crucial to determine whether the lack of power of judgement was permanent or temporary, and if temporary, to also determine when it started.
Mental weakness (akil zayifligi) as referred to but not defined in TMK, is not a kind or degree of mental illness; but rather a different mental disorder which a person may be born with or may develop later in life. It may contain elements of insufficiency, underdevelopment, standstill or reduction of mental functions. Dementia is an example of this. Even if medical science may label some of these cases as mental illness, from a legal perspective, they are treated as mental weaknesses. Most people with mental weaknesses retain their power of judgement. However, from a legal perspective, a person with a mental illness does not have power of judgement. As this power is not always lost forever and may come and go in some cases, it is important to examine its existence at the time of the person’s action in question.
Alzheimer’s disease is known to have a progressive development starting with mental weakness and leading to a possible mental illness. In the early stages of the illness, the person may continue to take good care of most of his/her affairs and may need less help from others. In the final stages of the illness, s/he may even be unable to cope with vital daily needs which obviously indicate a loss of the power of judgement requiring the restriction of his/her legal capacity. It is therefore important to determine the appropriate time for the appointment of a guardian. However, it may be useful to consider other less comprehensive legal measures even in the earlier stages (Zevkliler, Aydin, Kişiler Hukuku, p. 58 et seq., 1981, Ankara).
Proxy decision making
Conditions for the appointment of a guardian
The court’s appointment of one or more persons as guardian (vasi) necessitates a complete medical examination by an official medical committee. Comprehensive neurological, psychiatric, neuropsychiatric examinations and tests must be carried out.
Based on the results of these official expertise reports, the competent courts determine the extent to which a person is unable to exercise his/her rights. The courts then appoint, as a measure, appropriate persons to safeguard the rights of those who are not competent to exercise their rights for various reasons. The judge may hear the person who is subject to the restriction before making a decision. (TMK Art. 409/2; Yargitay 2nd Chamber for Civil Law, E. 2004/6402, K. 2004/7656, T. 10.6.2004).
A guardian (vasi) may be appointed for any adult who is:
- not capable of taking care of his/her own affairs due to a mental illness (disorder) or mental weakness (including retardation) or
- who needs someone else’s continuous help in order to care for him/herself or
- who puts other people’s safety at risk (TMK Art. 405/1).
Such a person is defined with the Turkish legal term kisitli meaning “a person whose capacity is restricted” (hereinafter “ward”, or in short “restricted person”).
A guardian is responsible more or less for all affairs of the restricted person whereas a curator (kayyim) is appointed only for urgent, specific, temporary affairs of importance (TMK Arts. 403, 426-428), either ex officio or upon an adult’s own justified request when s/he, for example, cannot personally take care of an urgent affair due to illness or is unable to personally appoint someone else to represent him/herself. The appointment of a curator (kayyim) for a person does not affect that person’s right to exercise his/her rights.
Another alternative could be a legal advisor (yasal danisman). S/he may be court-appointed instead of a guardian when there is no sufficient reason for restricting the capacity of a person, but it would be reasonable to limit him/her in the exercise of some specific rights such as buying and selling immovable property, giving credit or guarantee, making donations etc. (TMK Arts. 429-431). This alternative also includes the option of suspending the person’s right to administer his/her assets, but without depriving him/her from using the income from the assets as s/he pleases.
If it comes to the attention of the administrative authorities, public notaries or courts in the course of their duties that someone is in need of guardianship, they must immediately inform the competent guardianship authority (TMK Art. 405/2; Yargitay 2nd Chamber for Civil Law, E. 1996/4511, K. 1996/5252, T. 17.05.1996).
Moreover, any adult who proves that s/he is not capable of duly fulfilling his/her tasks due to old age, disability, lack of experience or serious disease is entitled to request a restriction of his/her legal capacity (TMK Art. 408).
How guardianship is arranged
Guardianship organs operate at three different levels, each with a different scope. These are the two specific courts, which together make up the guardianship office, and one or more guardians.
At the top, the local Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) as supervisory authority (denetim makami),
Below this, the local Civil Court of Peace (Sulh Hukuk Mahkemesi) as the common public guardianship (kamu vesayeti) authority (vesayet makami),
Exceptionally, under certain conditions, in private guardianship (özel vesayet), a family committee (aile meclisi) composed of at least three eligible members of the family may be authorised to serve as guardianship authority (instead of the local Civil Court of Peace), yet still under the supervision of the supervisory authority i.e. the local Civil Court of General Jurisdiction,
Finally, for the daily, basic affairs of the restricted person, the court-appointed guardians, curators and legal consultants serving under all of the above.
Decisions relating to guardianship are taken by the guardianship office in the place of residence of the person for whom the measure is intended (TMK Art. 411).
Who may be appointed guardian
The guardianship authorities are responsible for appointing an adult capable of such a task as guardian. More than one guardian can be appointed if needed (TMK Art. 413). The wife or the husband as well as close relatives are given priority, taking into account also the proximity of the relevant domiciles and personal relationships (TMK Art. 414). Unless there are justified reasons, the court appoints the one proposed by the person whose capacity shall be restricted as well as by his/her parents (in the case of minors?) (TMK Art. 415).
A person who is 60 years old, hardly able to fulfil the position due to physical disability or permanent disease, the parent of more than four children, already a guardian, the bearer of the title of President, member of the Turkish Grand National Assembly or the Cabinet, judge or prosecutor may refrain from accepting to undertake guardianship (TMK Art. 417).
On the other hand, a person who him/herself is restricted, has been banned from public service, leads a dishonourable life, has an obvious conflict of interest with the person for whom the guardian is needed, is in enmity with him/her, or is a judge of the guardianship office is not permitted to be a guardian (TMK Art. 418).
The duties and responsibilities of guardians
Guardians are responsible for all the interests of a restricted person (kisitli), including handling his/her property and representing him/her, unless otherwise stated in all legal acts (TMK Art. 403).
The two specific courts making up the guardianship offices, namely the Civil Court of General Jurisdiction, and under it the Civil Court of Peace, as well as the court-appointed guardians, are bound by the standards of good administration (TMK Art. 466). Thus, guardianship involves three distinct spheres of duty. These duties cover various issues of property management, social care and legal representation.
The guardian is obliged to keep records of his/her administration and to regularly draft and submit duly prepared reports for the examination and approval of the guardianship authority i.e. the local Civil Court of Peace about his/her exercised duties.
The guardians and/or guardianship offices are exceptionally required to also ask the restricted person for his/her unbinding opinion when s/he has power of judgement or is able to otherwise form an opinion and express this (TMK Arts. 450, 454).
Measures to protect the ward from misuse of power
Complaints (sikayet) about the acts of a guardian can be filed with the guardianship authority, i.e. with the local Civil Court of Peace. Moreover, objections (itiraz) may be raised against the decisions of the guardianship authority, i.e. of the local Civil Court of Peace before the supervision authority, i.e. before the local Civil Court of General Jurisdiction (TMK Art. 461).
All actions and activities of the guardians are followed up and supervised by the guardianship authority (the local Civil Court of Peace) at regular intervals so as to protect those who are under guardianship from abuse by their guardians.
Moreover, certain transactions clearly listed in TMK, which would be considered for any person as pertaining to significant financial, personal or professional consequences such as buying or selling immovable property, giving credit, changing domicile, etc., require the additional permission of the guardianship authority, i.e. of the local Civil Court of Peace. As such, the guardian shall not have any power to take any decisions which exceed the scope of regular daily affairs of the ward at his/her own discretion (TMK Art. 462).
Finally, TMK specifically states some of the most important decisions to be made (again in any person’s life) for certain wards in a second separate list which includes, inter alia, the adoption of a child, certain inheritance issues as well as contracts between the restricted person and his/her guardian. For such decisions, the additional permission of the supervisory authority, i.e. the local Court of General Jurisdiction on top of the permission of the guardianship authority, i.e. local Court of Peace is mandatory. This requirement provides a double-checking of the situation by the two local courts.
Any transaction wrongfully made by the guardian in the name of the ward, which should also have been permitted or approved by one or both of these competent courts, without obtaining such permission or approval, is not binding.
Compensation and liability of guardians
The guardian can be paid from the assets of the restricted person. When this is not possible, payment is made by the State Treasury. The amount of payment is assessed and determined regularly by the guardianship authority (the Civil Court of Peace) taking into account the guardian’s efforts and the income of the administered assets (TMK Art. 457).
Guardians are liable for damages caused by their faulty acts in the course of fulfilling their duties (TMK Art. 467; Yargitay 2nd Chamber for Civil Law, E. 2003/16223, K. 2003/17337, T. 25.12.2003). The same applies to curators (kayyim) for specific tasks as well as court-appointed legal advisors (yasal danisman) (TMK Art. 467). A former guardian whose duty has been terminated by the competent court may under certain circumstances be sued for any damages s/he may have caused earlier.
Furthermore, the State is also liable for damages caused by the acts of the responsible persons who have duties at a guardianship office, i.e one of the two competent local courts. Finally, the State is liable for damages caused by an appointed guardian when no compensation can be obtained from the said guardian. The State’s recourse right against the guardian is reserved by law (TMK Arts. 468, 469).
Duration of guardianship
Guardians are appointed for a period of two years. The guardianship authority (i.e the local Civil Court of Peace) can extend this period each time for two additional years. An appointed guardian may make use of his/her right to refrain from accepting the continuation of his/her duty after the completion of four years (TMK Art. 456). Failure of a guardian to regularly draft and submit duly prepared reports for the approval of the local Civil Court of Peace about his/her exercised duties shall result in the judicial termination of the guardianship duties.
Consequences of the loss of legal capacity
The capacity to have rights (hak ehliyeti) is granted to all human beings (TMK Art. 8). Even those whose capacity to exercise some or most of these rights is restricted continue to hold their rights.
On the other hand, the rights and obligations of a person whose capacity to exercise these rights (fiil ehliyeti) has been restricted depend on that person’s power of judgement (ayirt etme gücü).
If the person does not have power of judgement, s/he cannot enter into legal transactions even with the consent of his/her court-appointed guardian. Such a person can also not exercise any rights s/he may have acquired as a result of legal transactions entered into before losing his/her power of judgment. The protection of such previously acquired rights will be provided by his/her guardian (Akıntürk, Turgut; Türk Medeni Hukuku, Aile Hukuku, Vesayet Altındaki Kişinin Fiil Ehliyeti, p. 517 et seq., 2002, Istanbul).
A person whose legal capacity has been restricted (ward, kısıtlı) but who nevertheless continues to enjoy his/her own power of judgement may personally make use of the following rights independent of the consent his/her guardian.
- Strictly personal rights, such as the termination of an existing engagement, requesting to be declared an adult before reaching the legal age of maturity, etc. (TMK Art. 16/1).
- Acceptance of gratuitous acquisitions, provided that these do not result in any obligation for the ward and that these do not have immoral aims (TMK Art. 16/1, Code of Obligations = Borçlar Kanunu No. 818, dated 22.04.1926 = BK, Art. 236/2).
- A ward who has been permitted to exercise a profession or an artistic activity may personally enter into all ordinary (daily) legal transactions which are required by such profession or art. However, the ward shall be liable for these transactions with all of his/her assets (TMK Art. 453).
- Administration of specific items of his/her assets which have been left to his/her personal discretion (TMK Art. 455).
- Administration of the assets gained as a result of the ward’s professional activity which had been permitted by his/her guardian (TMK Art. 455).
Capacity in specific domains
Marriage and annulment
Persons with certain medical conditions do not have the right to marry. A person who intends to marry must prove, inter alia, that s/he meets certain medical criteria. The official mandatory medical examination has to be conducted by a medical board (TMK Art. 136) and also includes the examination of the person’s power of judgement. Those who have been medically declared as having a chronic mental illness or those whose legal capacity has been restricted as a result of such severe illness can never marry. Each case is handled individually. Other people with a mental illness may marry provided that the official medical board does not have any medical reservations (TMK Art. 133). Those whose legal capacity has been restricted on grounds other than mental illness may marry with the permission of their guardians or competent judges (TMK Art. 136, Marriage Regulation, No. 85/9747, dated 10.7.1985 = Evlendirme Yönetmeligi, Art. 14/2)
As dementia usually develops progressively, each person’s medical stage must be considered carefully. Thus, it is possible to medically determine to what extent the given medical stage would affect the person’s power of judgement. Finally, the level of the given power of judgement shall be taken into account in determining whether the person’s legal capacity needs to be restricted or not under these specific conditions.
A marriage which has somehow been concluded is definitely null and void if one of the married partners:
- had lacked his/her power of judgement permanently at the given time of the marriage, or
- had been suffering from a mental illness which had then reached a medical stage of such severity as to represent an obstruction to marriage (TMK Art. 145).
Although all citizens of Turkey have the right to vote and be voted for, citizens who have been declared restricted (kisitli) cannot exercise these rights. (Act on Essential Principles of Elections and Registries of Electors = Seçimlerin Temel Hükümleri ve Seçmen Kütükleri Hakkinda Kanun, No. 298, dated 26.04.1961, Arts.6, 8).
Binding legal transactions in the name of a person who lacks power of judgement or who has been declared a restricted person (kisitli) can only be made by his/her guardian acting as his/her representative. Such persons cannot enter into contracts without the consent of their legal representatives. However, consent is not required in gratuitous acquisitions or while exercising strictly personal rights (TMK Arts. 4, 5, 16).
Certain legal transactions with significant consequences as listed in TMK cannot be made even by the guardian. These transactions require the specific permission of the guardianship authority, namely the local Civil Court of Peace (TMK Arts. 462, 463).
In principle, people whose legal capacity has been restricted (wards, kisitli) as a result of their mental illnesses or mental weaknesses have no testamentary capacity. On the other hand, in the opposite situation, if it can be proven that a testament had been made by a person who had power judgement at the time s/he made the testament, this testament may be deemed valid. Any one who claims that the person who made a testament did not have power of judgement at the given time has the burden to prove his/her allegation in this respect. However, this legal assumption and burden of proof shifts sides when a testament was made by a ward who had been restricted as a result of his/her mental illness or mental weakness. In this case, it should be proven that the ward actually had his/her power of judgement at the time s/he made the testament in question (Imre, Zahit & Erman, Hasan, Miras Hukuku, Ölüme Bagli Tasarruf Ehliyeti, p. 59 et seq., 2003, Istanbul).
Testamentary contracts differ from testaments in the issue of testamentary capacity. All persons whose legal capacity has been restricted (wards, kisitli) are deprived of the right to enter into testamentary contracts, regardless of the reason for their restriction. As such, it makes no difference if the ward has power of judgement or not. Legal representation of a person is not possible for inheritance law transactions subject to the subsequent death of a person (ölüme bagli tasarruflar). The consent of a legal representative has no effect and significance in such cases. Various issues related to the law of inheritance are controlled either by the guardianship authority (local Civil Court of Peace) or by both the guardianship authority along with the supervisory authority (local Civil Court of General Jurisdiction) (TMK Arts. 462/9, 463/5).
The acts of a person who lacks power of judgement do not in principle result in any legal consequence (TMK Art. 15). A person who, inter alia, lacks power of judgement or, as explained above, has been judicially declared a restricted person (ward, kisitli) by a competent court does not possess the capacity to exercise his/her rights. As such, these people cannot undertake any obligations as a result of their own transactions so long as their legal representatives have consented to these.
On the other hand, people who have been declared a restricted person (ward, kisitli), but who nevertheless have power of judgement, have a civil law responsibility for their own torts (TMK Art. 16/II).
According to the Turkish Penal Code (Türk Ceza Kanunu = TCK, Art. 32), a person who lacks the ability to understand the legal significance and consequences of a criminal act, or who has lost the capacity to control his/her actions due to insanity, may not be punished. Nevertheless, precautionary measures for the sake of security may be imposed on that person.
A person who lacked the ability to control his/her actions in relation to a criminal act committed by him/her, but to a lesser extent than that described above (due to partial mental illness) may be granted a lighter sentence or have the sentence replaced by preventive security measures.
Mr Murat R. Özsunay was the author of the above text on the legal situation in Turkey.
Last Updated: Wednesday 28 March 2012