Guardianship and Curatorship: Which One Applies, and How to Apply

This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Vasi ve Kayyım Atanması: Kim, Ne Zaman İster?.

Guardianship restricts a person's legal capacity and appoints a guardian for them; curatorship does not restrict capacity at all — it appoints a representative for a defined matter or for the administration of property. The distinction is decisive in practice: guardianship affects every legal act the person performs, while curatorship is confined to the matter for which the curator was appointed.

An elderly parent, a relative who has suffered a serious illness, a family member who has been out of contact for a long time. Someone has to be able to act for them in law.

There are two separate routes — guardianship and curatorship — and they are often confused. This article explains the difference and the process.

Guardianship or Curatorship?

Guardianship results in the restriction of legal capacity. A guardian is appointed for the person whose capacity is restricted, and represents them generally.

Curatorship does not restrict capacity. A curator is appointed for a defined matter or for the administration of property.

An illustration: guardianship for a person with advanced dementia who can no longer manage anything; a curator for someone abroad who cannot attend a land registry transaction, or for an estate whose heirs are not yet known.

There is also the institution of the statutory adviser (Article 429): where restriction of capacity is not warranted, a person may be required to obtain an adviser's opinion for defined transactions.

Grounds for Restricting Capacity

The Civil Code lists them:

• Mental illness or mental weakness (Article 405) — where a person cannot manage their affairs, needs constant assistance for their protection, or endangers the safety of others
• Prodigality, addiction to alcohol or narcotics, a dissolute way of life, mismanagement (Article 406) — where these risk reducing the person or their family to poverty
• A custodial sentence (Article 407) — every adult sentenced to one year or more of imprisonment has their capacity restricted
• On request (Article 408) — an adult who proves that they cannot properly manage their affairs because of old age, disability, inexperience or serious illness may ask for their capacity to be restricted

Restriction on the ground of mental illness or weakness is ordered on an official medical board report. The judge may hear the person concerned before deciding, having regard to that report.

Types of Curator

A representation curator (Article 426) is appointed where an adult cannot deal with an urgent matter themselves or appoint a representative because of illness, absence or a similar reason; where the interests of a legal representative conflict with those of a minor or a person under guardianship; or where something prevents a legal representative from acting.

An administration curator (Article 427) is appointed to administer property — in cases of prolonged absence, where a legal person lacks the necessary organs, or where the management of a foundation is inadequate.

Curatorship on request (Article 428): an adult who proves that they cannot properly manage their affairs because of old age, disability, inexperience or serious illness may ask for a curator to be appointed for them.

How Is the Application Made?

The application is made to the civil court of peace at the person's place of residence. It may be made by a relative, by another interested person, or by the person themselves.

What to file with it: identity and population records showing the relationship, medical reports and hospital records, and any documents showing the person's assets.

The court obtains an official medical board report, hears the person concerned where their condition allows, and hears the relatives. It then decides on the restriction and appoints a guardian.

In choosing a guardian the court prefers a suitable close relative — a spouse, a child or a parent — taking account of the person's own wishes and of any conflict of interest.

The Guardian's Powers and Their Supervision

A guardian represents the person under guardianship and manages their property, but not without control:

• an inventory of the property is drawn up at the outset
• the guardian submits accounts and a report at regular intervals
• significant transactions — selling immovable property, borrowing, accepting or disclaiming an inheritance, bringing or settling proceedings — require the approval of the guardianship authority and, in the cases the Act lists, of the supervisory authority
• a guardian who causes loss through fault is liable for it

These controls matter: a transaction carried out by a guardian without the required approval can be challenged.

How Does It End?

Guardianship ends when the grounds for it disappear. The person concerned, or a relative, may apply to the court for the restriction to be lifted, supported by a fresh medical board report.

Restriction imposed because of a custodial sentence ends automatically when the sentence is served.

Curatorship ends when the matter for which the curator was appointed is completed, or when the reason for the appointment falls away.