Appointment and Removal of a Guardian

Appointment and Removal of a Guardian

The Civil Code provides for the appointment of a guardian in order to protect the rights and interests of legally incapacitated persons.

The selection, appointment, and removal of a guardian are matters frequently encountered by eligible individuals. Specific legal rules govern the appointment and removal of a guardian, and they must be strictly complied with.

Legal Effects of the Appointment or Removal of a Guardian on the Incapacitated Person

Guardian

From a linguistic perspective, a guardian refers to a custodian or supervisor responsible for managing the affairs of an incapacitated person. In legal terms, a guardian is a person appointed by the court, upon the request of the public prosecutor, to protect, supervise, and manage the personal and financial affairs of an incapacitated individual. This legal role is referred to as guardianship.

The Civil Code provides for the appointment of a guardian for individuals who lack a specific legal guardian, such as a father or paternal grandfather, as well as for persons who are insane or legally incompetent. A guardian must possess the required legal qualifications, and the appointment is carried out in accordance with statutory procedures and defined legal duties.

Persons Requiring a Guardian

Under the law, incapacitated persons who lack the ability to manage their personal or financial affairs require another person to administer their affairs. Incapacitated persons include minors, insane individuals, and persons lacking legal capacity. A guardian may be appointed for such individuals under the following conditions:

• A minor who lacks a specific legal guardian, such as a father or paternal grandfather
• Persons who lack a specific legal guardian and are insane or legally incompetent, where such condition is connected to their minority
• Insane or legally incompetent persons whose condition is not connected to their minority

Accordingly, if the father of an incapacitated person has passed away, guardianship rests with the paternal grandfather. If the paternal grandfather has also passed away and the father or grandfather has appointed a person under a will to manage the incapacitated person’s affairs, that person acts as an executor. However, if the executor lacks competence or the ability to fulfill the duties, the court shall appoint a guardian in accordance with the law.

Legal Conditions for Appointment as a Guardian

• The guardian must possess the necessary capacity to perform legal acts and to manage the incapacitated person’s property in accordance with their best interests.
• The guardian must be trustworthy; if they are not, they shall be removed from the position.
• The guardian must be legally mature and competent.
• The guardian must be a Muslim.

Under the law, if both the father and paternal grandfather of the incapacitated person have passed away, the mother may be appointed as guardian, provided that she has not remarried. In the event of her remarriage, the court must be informed so that a new guardian or a supervising trustee may be appointed.

Duties of the Guardian

• Management of the financial affairs of the incapacitated person in accordance with their best interests.
• Safekeeping of valuable items and documents belonging to the incapacitated person in a secure location, with the knowledge of the public prosecutor.
• Depositing the incapacitated person’s cash funds in a reputable bank.
• Sale of perishable assets and use of the proceeds in the best interests of the incapacitated person.
• Ensuring medical care and healthcare expenses are covered from the incapacitated person’s assets.
• Preparation of a comprehensive inventory of all assets prior to administration and submission of a copy to the public prosecutor.

Appointment of a Guardian

If the court determines that an individual is legally incapacitated, the necessary investigations shall be conducted, and a certificate confirming incapacity shall be issued.

The court will then proceed to appoint a guardian. The court may appoint one or two qualified individuals as guardians.

Upon acceptance of the appointment and notification thereof, the guardian must immediately commence performance of their duties.

Competent Court for Appointment of a Guardian

The court having jurisdiction over the place of residence of the incapacitated person is competent to appoint a guardian and to address matters related thereto.

If no competent court exists at the place of residence, the nearest competent court shall have jurisdiction.

Removal of a Guardian

A guardian may be removed under the following circumstances:

• Acting beyond the scope of assigned duties and legal authority.
• Failure to act in the best interests of the incapacitated person.
• Establishment of a lack of trustworthiness before the court.
• Improper or negligent performance of duties.

Automatic Disqualification of a Guardian

If a guardian becomes insane or legally incompetent, they shall be automatically disqualified from the date of incapacity. In addition, if a Muslim guardian renounces their religion, they shall be removed from guardianship, as they no longer satisfy one of the essential legal conditions for holding the position.

Frequently Asked Questions About Appointment and Removal of a Guardian