Article 406 of the Turkish Civil Code is as follows: “A person who risks falling into poverty or poverty for himself or his family due to his extravagance, alcohol or drug addiction, bad lifestyle or mismanagement of his assets, and who therefore needs constant protection and care, or who threatens the safety of others.” “Every adult who does so will be restricted.” It is in the form. According to the established Supreme Court jurisprudence, when deciding to restrict a person due to extravagance, the ratio of his expenses to his assets should be taken into consideration. If the person’s expenses are quite low compared to his assets, the case will most likely be rejected. The law also requires that a person’s extravagance risks putting him or his family in poverty or poverty.
The case must be filed in the Civil Court of Peace in the place where the restricted candidate resides.
Article 409 of the Turkish Civil Code is as follows: “A person cannot be restricted due to his extravagance… mismanagement… without being heard.” It is in the form. For this reason, if a restriction decision is to be made due to wastefulness or mismanagement of assets, it is imperative that the restricted candidate is heard.
Article 286/2 of the Turkish Code of Obligations verbatim: “If, as a result of a trial initiated within one year following the donation, it is decided to restrict the donor due to his extravagance, that donation may be annulled by the court.”It is in the form. In this way, it is possible to cancel the donations made by the restricted candidate within a year before the guardianship case is filed.
When a lawsuit is filed for guardianship due to extravagance and mismanagement of assets, precautions regarding the person’s assets must first be requested. Courts can impose measures on a person’s immovable and movable assets, bank accounts excluding salaries, and write to banks to prevent the person from taking out a loan. Afterwards, the restricted candidate and any witnesses regarding the claim are heard, and retrospective account movements and movable and immovable transfers are examined. In these cases, the ex officio investigation principle applies. For this reason, all kinds of evidence must be evaluated by the Court unless it constitutes illegal evidence.
TMK Article 429- A legal advisor is appointed to an adult person whose capacity to act is deemed necessary to be restricted in order to protect it, even though there is no sufficient reason for restriction, to obtain his opinion on the following matters: 1. Filing a lawsuit and making peace, 2. Purchasing, selling, pledging and other matters regarding immovable properties. establishment of a real right, 3. Purchase, sale and pledge of negotiable instruments, 4. Construction works outside the boundaries of ordinary management, 5. Lending and receiving, 6. Receiving the principal money, 7. Donation, 8. Entering into a foreign exchange commitment, 9. Don’t be a guarantor. Under the same conditions, a person’s authority to manage his assets may be revoked, without prejudice to his right to dispose of his income as he wishes.
In accordance with the established Supreme Court jurisprudence, if there is no extravagance or mismanagement of the restricted candidate that requires restriction, legal advice should be evaluated according to the concrete case.
The decision of the 18th Civil Chamber of the Supreme Court of Appeals, numbered 14816 E., 1160 K. and dated 02.02.2015, states: “Whether the person who is requested to be restricted due to the allegation of mismanagement of his assets has any assets, and if he has assets, whether the dispositions regarding these assets will cause him or his family to fall into poverty and poverty. By asking the parties for the title deed information of the immovable property which has not been opened and claimed to have been transferred in the title deed, it is determined whether the sales price is below its real value and whether there is any extraordinary expenditure by bringing the records showing the bank account movements, in a way that will allow the Supreme Court audit, and the witnesses regarding this claim are heard and a decision is made in line with the result. It will be necessary”.
The decision of the 18th Civil Chamber of the Supreme Court of Appeals, numbered 1289 E., 7970 K. and dated 29.04.2014, states that “In the case filed with the request for restriction due to extravagance, if it is determined that there is a danger of the person and his family falling into poverty and poverty, the action becomes related to public order.” Therefore, the case cannot be waived.”
