INTRODUCTION
This report analyzes the procedures and principles regarding the management of the ward’s assets, in light of presented judicial decisions. In particular, the question of whether a guardian’s permission is required for the buying and selling of immovable property is frequently asked. This management process, shaped within the framework of the Turkish Civil Code (TMK), is carried out by legal representatives, referred to as guardians or trustees, and is subject to the strict supervision of guardianship authorities (Civil Court of Peace and Civil Court of First Instance). The study examines the fundamental principles of asset management, the duties and responsibilities of legal representatives, their limits of authority, and oversight mechanisms.
1. The Role and Responsibilities of the Guardian and Trustee
Judicial decisions make a functional distinction between a guardian and a trustee in asset management.
Guardian: A guardian has a broader scope of authority and responsibility. As stated in the Constitutional Court’s decision, the guardian is the person who is “obliged to protect all interests related to the personality and assets” and “represent them in legal transactions“ of the person under guardianship (AYM-2022/105). In this context, the guardian’s duties include keeping an inventory of the assets, converting monies into secure investments, and regularly accounting to the guardianship authority (Supreme Court 2nd Civil Chamber-2009/13839).
Administrator: An administrator, on the other hand, is appointed for a more limited and specific task. As emphasized in the Council of State’s decisions, “If an administrator is appointed for the management and supervision of assets, they can only perform the tasks necessary for the management and protection of those assets” (Council of State 13th Chamber-2023/391, TCC art. 460). Specifically, in situations such as a legal entity becoming organ-less, a person lacking the capacity to manage their assets, or being unheard from for a long time, an “administrator for management” is appointed (Supreme Court 7th Civil Chamber-2022/3120).
A common responsibility for both legal representatives is to be liable for damages arising if they perform their duties with faulty conduct (Council of State 13th Chamber-2022/608).
2. Limits of Authority in Asset Management and Guardianship Authority’s Permission
The authority of legal representatives is not unlimited, and transactions are subject to different regimes based on their nature:
Ordinary Management Tasks Not Requiring Permission: In Council of State decisions, these tasks are, “collection of receivables, payment of debts, filing tax declarations, sale of perishable goods, taking measures for the preservation of existing assets” exemplified as (Council of State 13th Chamber-2022/608). For such routine transactions, the permission of the guardianship authority is not required.
Transactions Requiring Permission from the Guardianship Authority: For transactions that can create significant changes in assets, the permission of the guardianship authority is mandatory. These transactions are frequently referenced in judicial decisions:
Dispositions Related to Immovable Property: “The purchase, sale, mortgaging of immovable property, and the establishment of another real right over them are subject to the permission of the guardianship authority” (Court of Cassation 14th Civil Chamber-2010/12624, TCC art. 462). Transactions made without permission are considered “unlawful registration” (Court of Cassation 1st Civil Chamber-2014/3091).
Filing a Lawsuit: The guardian’s ability to file a lawsuit on behalf of the restricted person is also subject to permission (Court of Cassation General Assembly of Civil Chambers-2020/465, TCC art. 462/8).
Other Important Transactions: Lending and borrowing, matrimonial property regime contracts, division of inheritance, entering into long-term lease agreements, and construction works exceeding the limits of ordinary management also require the permission of the guardianship authority (Constitutional Court-2022/105; Jurisdictional Conflict-Law Department-2016/572).
Absolutely Prohibited Actions: Actions such as acting as a guarantor, establishing a foundation, and making significant donations on behalf of the person under guardianship are actions that “fall under the scope of absolute prohibitions and cannot be performed even with the guardian’s approval” (AYM-2022/105).
3. Supervision Mechanism and Special Cases
The guardianship system has a multi-layered supervision mechanism.
Guardianship Offices: Public guardianship is “conducted by guardianship offices comprising the guardianship authority (Civil Court of Peace) and the supervisory authority (Civil Court of First Instance)” (Bursa 1st ATM-2024/68). The guardian and trustee are obliged to submit account and activity reports to the guardianship authority regularly (usually once a year) (AYM-25/12/2018; Conflict-Law Department-2016/572). The person under guardianship or interested parties may file a complaint with the guardianship authority against the legal representative’s actions.
Restricted Adult Children Under Parental Custody: According to Supreme Court decisions, restricted adult children may remain under the custody of their parents unless there is a perceived need for a guardian to be appointed. In this case, the management of their assets is not carried out according to guardianship provisions, but according to “parental custody provisions”, and the competent court is the Family Court (Supreme Court 20th Civil Chamber-2016/4631).
CONCLUSION
When court decisions are evaluated holistically, it is observed that the management of a ward’s assets is a process that leaves no room for arbitrariness, is strictly regulated by law, and is subject to continuous judicial oversight. At the core of this management lies the guardian’s or trustee’s obligation to “exercise care like a good manager.” While the distinction between ordinary and extraordinary transactions defines the legal representative’s scope of action, the permission of the guardianship authority emerges as an absolute condition for validity, especially for dispositions involving significant assets like real estate. The ultimate purpose of this multi-layered protection and control mechanism is to safeguard the interests related to the assets of individuals with restricted legal capacity at the highest possible level. An article suggestion.
Why is Expert Legal Support Necessary?
Although transactions related to the ward’s assets may appear administrative in nature, they are complex processes that require a high level of legal technical knowledge and judicial oversight, both under the Turkish Civil Code and court precedents. Especially transactions such as real estate buying and selling, filing lawsuits, inheritance distribution, long-term lease agreements, or managing bank accounts are subject to the permission of the guardianship authority, making the flawless execution of this process of great importance.
In practice, unauthorized transactions are considered “unlawful registration” and can lead to significant loss of rights for both the guardian and the ward. Furthermore, the guardian or trustee also has personal liability for damages arising from neglecting their duty or exceeding their authority. For this reason, both during the appointment of a guardian phase and in transactions related to asset management —for example, in situations such as real estate sales, filing lawsuits, inheritance procedures, or termination of guardianship— support from an expert lawyer is vitally important.
In Istanbul and its surroundings, especially for individuals residing in areas such as Tuzla, Kartal, Pendik, Tepeören, Bayramoğlu, and Gebze, guardianship procedures are typically handled by the Civil Courts of Peace in these regions. Therefore, an experienced Tuzla lawyer or Istanbul guardianship law lawyer who is familiar with the practices of the relevant regional courts can manage the process both more quickly and flawlessly.
In cases of incorrect application, incomplete authorization request, or improperly prepared petition, the process may be prolonged, or even the transaction made may become entirely invalid. Therefore, to protect the rights of the ward and manage their assets securely, working with an attorney specialized in guardianship and family law from the beginning of the process is not merely a preference, but a legal necessity.
