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No. The legal system in Turkey does not provide for lasting powers of attorney. They will be valid until the time of losing the legal capacity.
If not:
Why does your legal system not provide for lasting powers of attorney (e.g. public policy)?
Because the person who has lost the legal capacity, will not have the right to abolish the power of attorney in case of necessity. The person who loses his legal capacity is called limited person in Turkish Law and limited persons cannot use the said right and the law does not accept the limitation on actions.
Can the aim of a lasting power of attorney be achieved, even partially, by other legal means?
Normally, the authorisation ends in case of the death of the person who appoints the attorney. The Turkish legal system provides for lasting powers of attorney which were given for certain and specific aims (e.g. for a certain property etc.), after the death, on condition to be declared the lasting wish in the content of the document (Unusual).
If not:
Why does your legal system not provide for lasting powers of attorney (e.g. public policy)?
Because the person who has lost the legal capacity, will not have the right to abolish the power of attorney in case of necessity. The person who loses his legal capacity is called limited person in Turkish Law and limited persons cannot use the said right and the law does not accept the limitation on actions.
Can the aim of a lasting power of attorney be achieved, even partially, by other legal means?
Normally, the authorisation ends in case of the death of the person who appoints the attorney. The Turkish legal system provides for lasting powers of attorney which were given for certain and specific aims (e.g. for a certain property etc.), after the death, on condition to be declared the lasting wish in the content of the document (Unusual).
No.
If not:
Why does your legal system not provide for advance decisions (e.g. public policy)?
There is no legal basis for advance decision so that does not exist in practise but if the legislator decides to prepare the legal basis it may be possible.
Can the aim of an advance decision be achieved, even partially, by other legal means?
There is no way for living persons. The advance decision is acceptable only for appointment of testamentary executor/s with a last will in order to provide administration of estates after death.
If not:
Why does your legal system not provide for advance decisions (e.g. public policy)?
There is no legal basis for advance decision so that does not exist in practise but if the legislator decides to prepare the legal basis it may be possible.
Can the aim of an advance decision be achieved, even partially, by other legal means?
There is no way for living persons. The advance decision is acceptable only for appointment of testamentary executor/s with a last will in order to provide administration of estates after death.
No.
If not:
Why does your legal system not provide for notarised powers of attorney (e.g. public policy)?
There is no legal basis for this right so that does not exist in practise but if the legislator decides to prepare the legal basis it may be possible.
If not:
Why does your legal system not provide for notarised powers of attorney (e.g. public policy)?
There is no legal basis for this right so that does not exist in practise but if the legislator decides to prepare the legal basis it may be possible.
In international level, if the appointment decision would be given by the Turkish court about a foreigner, authorised court would be the residential court of the foreigner in Turkey. If he/she has not an address in Turkey, one of the Istanbul, Izmir or Ankara courts could be the authorised court and in this case, law of their own country should be applied on the trial.
If the appointment is about a Turkish citizen, the court would be authorised where the person to be appointed legal guardian, resides.
If the decision (appointment a legal advisor) is about a real property transaction of the limited person, the court has trial authorisation where the real property is localised.
Legal guardians should be appointed by the Magistrates.
If the appointment is about a Turkish citizen, the court would be authorised where the person to be appointed legal guardian, resides.
If the decision (appointment a legal advisor) is about a real property transaction of the limited person, the court has trial authorisation where the real property is localised.
Legal guardians should be appointed by the Magistrates.
If the person is a limited person, he may have several guardians depending on the judge deems necessary. Guardians may be appointed either for every single property or for groups of them.
The representation of limited person (e.g. mental patient, taken one year or more prison sentence) needs another approval of the Court of Magistrate (both in the appointment and in every single legal action), besides some legal actions (e.g. sale of a real property) need some permission of the same court and approval of the Court of First Instance as well.
lasting powers of attorney?
There is no rule in force concerning lasting powers of attorney.
advance decisions to refuse treatment?
There is no rule in force concerning advance decisions.
requests made with regard to the guardian and/or circumstances of a guardianship?
The guardianship rules take place in the Civil Code. The Turkish Civil code has priority over the all other laws so no substantive law rules can replace the Turkish Civil Code rules.
Has your Member state signed the Hague Convention of 13 January 2000 on the International Protection of Adults?
No.
Under what condition are the following foreign documents recognised in your Member State?
lasting powers of attorney
As mentioned above, the Turkish Law does not provide lasting powers of attorney but if the person is a citizen of a member country providing lasting powers of attorney, its law will be applied and the lasting power of attorney will be recognised and executed in Turkey.
advance decisions to refuse treatment
As mentioned above, the Turkish Law does not provide advance decisions to refuse treatment but if the person is a citizen of a member country providing this, its law will be applied and the advance decisions will be recognised and executed in Turkey.
c) notarised powers of attorney
If the notarised powers of attorney carry apostille, these will be recognised.
There is no rule in force concerning lasting powers of attorney.
advance decisions to refuse treatment?
There is no rule in force concerning advance decisions.
requests made with regard to the guardian and/or circumstances of a guardianship?
The guardianship rules take place in the Civil Code. The Turkish Civil code has priority over the all other laws so no substantive law rules can replace the Turkish Civil Code rules.
Has your Member state signed the Hague Convention of 13 January 2000 on the International Protection of Adults?
No.
Under what condition are the following foreign documents recognised in your Member State?
lasting powers of attorney
As mentioned above, the Turkish Law does not provide lasting powers of attorney but if the person is a citizen of a member country providing lasting powers of attorney, its law will be applied and the lasting power of attorney will be recognised and executed in Turkey.
advance decisions to refuse treatment
As mentioned above, the Turkish Law does not provide advance decisions to refuse treatment but if the person is a citizen of a member country providing this, its law will be applied and the advance decisions will be recognised and executed in Turkey.
c) notarised powers of attorney
If the notarised powers of attorney carry apostille, these will be recognised.
Yes, Switzerland ratified this Convention in 2007 and it came into force on 1st July 2009.
Law applicable to questions of custody and legal representation of minors
In general, the HC96 provides for the application of the law in force in the State where the competent authorities are found, pursuant to art. 15 para 2 of the HC which establishes that the competent authorities may decide to apply or take into consideration the law of another country, when the protection of the individual or the child’s assets require it.
Which authority has international and territorial jurisdiction concerning questions of custody?
In principle, the authority having jurisdiction is the one of the child’s habitual residence, in accordance with the HC.
Which authority has international and territorial jurisdiction concerning questions of representation?
In principle, the authority having jurisdiction is the one of the child’s habitual residence, in accordance with the HC.
Law applicable to questions of custody and legal representation of minors
In general, the HC96 provides for the application of the law in force in the State where the competent authorities are found, pursuant to art. 15 para 2 of the HC which establishes that the competent authorities may decide to apply or take into consideration the law of another country, when the protection of the individual or the child’s assets require it.
Which authority has international and territorial jurisdiction concerning questions of custody?
In principle, the authority having jurisdiction is the one of the child’s habitual residence, in accordance with the HC.
Which authority has international and territorial jurisdiction concerning questions of representation?
In principle, the authority having jurisdiction is the one of the child’s habitual residence, in accordance with the HC.
A person becomes of age at 18 (art. 14 SCC). Thus, a person is considered a minor until he/she turns 18.
Providing a minor is capable of discernment however, he/she may dispose of some assets (separated assets). These include assets:
– made available to the minor by his/her legal representative (parents or custodian) or by third parties;
– made available to the minor in order to exercise a profession or trade;
– resulting from a salaried job or self-employment.
2.1 Extending the legal capacity of a minor (marriage) in some cases
A minor capable of discernment may conclude some transactions listed under article 19 of the SCC. Namely:
He/she may acquire rights on a purely free-of-charge basis (donation, receive a non-binding offer, accomplish an action interrupting time limitation, etc.)
He/she may deal with minor, everyday-life matters (purchase of food, train or cinema tickets, etc.)
He/she may exercise his/her strictly personal rights.
However, the law provides for some restrictions regarding the exercise of these rights by the minor alone. These exceptions require the consent of the legal representative (engagement, marriage contracts, recognizing a child, for example) or prohibit the accomplishment of an act (will, inheritance agreement, sterilisation).
2.1.1. Subordination of this extension to a court decision
Extending the minor’s civil capacity is not subordinated to a court decision.
2.1.2. List of transactions
Cf. 2.1 above
Providing a minor is capable of discernment however, he/she may dispose of some assets (separated assets). These include assets:
– made available to the minor by his/her legal representative (parents or custodian) or by third parties;
– made available to the minor in order to exercise a profession or trade;
– resulting from a salaried job or self-employment.
2.1 Extending the legal capacity of a minor (marriage) in some cases
A minor capable of discernment may conclude some transactions listed under article 19 of the SCC. Namely:
He/she may acquire rights on a purely free-of-charge basis (donation, receive a non-binding offer, accomplish an action interrupting time limitation, etc.)
He/she may deal with minor, everyday-life matters (purchase of food, train or cinema tickets, etc.)
He/she may exercise his/her strictly personal rights.
However, the law provides for some restrictions regarding the exercise of these rights by the minor alone. These exceptions require the consent of the legal representative (engagement, marriage contracts, recognizing a child, for example) or prohibit the accomplishment of an act (will, inheritance agreement, sterilisation).
2.1.1. Subordination of this extension to a court decision
Extending the minor’s civil capacity is not subordinated to a court decision.
2.1.2. List of transactions
Cf. 2.1 above
The two parents (father and mother) together are the only ones who have the right of custody, if married. In this case, the right of custody is exercised jointly.
When the mother is not married to the father, then the mother has the right of custody, unless the parents have signed a written statement to hold custody jointly.
When both the father and mother have the right of custody, third parties in good faith may assume that each parent acts with the consent of the other.
In case of divorce or separation (unmarried couple), the judge may assign the right of custody to only one parent or to both jointly.
If the parent having the right of custody is placed under general legal guardianship, he/she automatically loses the right of custody that is assigned either to the other parent or a custodian.
Furthermore, the child protection authority may deprive one or both parents of the right of custody (grave dereliction of duty, infirmity, sickness, absence of one parent). If both parents are deprived of the right of custody, the child protection authority appoints a custodian.
What is the scope of the right of custody
The scope is broad. The person having the right of custody chooses the child’s name, place of residence and represents him/her in all legal transactions, excluding those where the minor may act individually or those where the minor acts with the consent of the person having the right of custody (cf. article 19 SCC, described under section 2.1 hereinabove).
Custodian-designating authority
It is the child protection authority. The organisation of justice, but contentious and non-contentious, is left to the Cantons under Swiss law. As a result, the authority will not always be the same from one Canton to another. In the Canton of Vaud, it is the Justice of the Peace.
On whose proposal and when is the decision on appointment of custody made?
The Child Protection Authority adopts the necessary measures to protect a child if his/her development up is threatened. It appoints a custodian that it chooses.
Is the competent authority free in its choice of a new custodian?
Yes, the competent authority is sovereign, subject to the right of appeal against its decisions.
Can the right of custody belong to several persons?
Yes. The married father and mother have joint custody, whilst unmarried parents may declare they wish to exercise it jointly.
Appointment of several custodians?
The law provides for the appointment of only one custodian for all the transactions involving the minor.
Disagreement of the parents regarding the right of custody
It is necessary to distinguish several situations:
Married couple: both parents have the right of custody, unless one of them is subject to an adult protection measure or has been deprived of the right of custody by the Child Protection Authority (mistreatment, incapacity, etc.)
Divorced parents : the divorce judge assigns the right of custody either to one or to both parents. The judge alone decides on the foregoing assignment, taking the child’s interest into due account.
Unmarried parents: the right of custody is assigned to the mother, unless both parents make a written statement and providing the father has recognised the child or that parentage has been acknowledged by means of a court decision
Transferring the right of custody by means of a power attorney
Under Swiss law, the right of custody cannot be transferred.
When the mother is not married to the father, then the mother has the right of custody, unless the parents have signed a written statement to hold custody jointly.
When both the father and mother have the right of custody, third parties in good faith may assume that each parent acts with the consent of the other.
In case of divorce or separation (unmarried couple), the judge may assign the right of custody to only one parent or to both jointly.
If the parent having the right of custody is placed under general legal guardianship, he/she automatically loses the right of custody that is assigned either to the other parent or a custodian.
Furthermore, the child protection authority may deprive one or both parents of the right of custody (grave dereliction of duty, infirmity, sickness, absence of one parent). If both parents are deprived of the right of custody, the child protection authority appoints a custodian.
What is the scope of the right of custody
The scope is broad. The person having the right of custody chooses the child’s name, place of residence and represents him/her in all legal transactions, excluding those where the minor may act individually or those where the minor acts with the consent of the person having the right of custody (cf. article 19 SCC, described under section 2.1 hereinabove).
Custodian-designating authority
It is the child protection authority. The organisation of justice, but contentious and non-contentious, is left to the Cantons under Swiss law. As a result, the authority will not always be the same from one Canton to another. In the Canton of Vaud, it is the Justice of the Peace.
On whose proposal and when is the decision on appointment of custody made?
The Child Protection Authority adopts the necessary measures to protect a child if his/her development up is threatened. It appoints a custodian that it chooses.
Is the competent authority free in its choice of a new custodian?
Yes, the competent authority is sovereign, subject to the right of appeal against its decisions.
Can the right of custody belong to several persons?
Yes. The married father and mother have joint custody, whilst unmarried parents may declare they wish to exercise it jointly.
Appointment of several custodians?
The law provides for the appointment of only one custodian for all the transactions involving the minor.
Disagreement of the parents regarding the right of custody
It is necessary to distinguish several situations:
Married couple: both parents have the right of custody, unless one of them is subject to an adult protection measure or has been deprived of the right of custody by the Child Protection Authority (mistreatment, incapacity, etc.)
Divorced parents : the divorce judge assigns the right of custody either to one or to both parents. The judge alone decides on the foregoing assignment, taking the child’s interest into due account.
Unmarried parents: the right of custody is assigned to the mother, unless both parents make a written statement and providing the father has recognised the child or that parentage has been acknowledged by means of a court decision
Transferring the right of custody by means of a power attorney
Under Swiss law, the right of custody cannot be transferred.
The two parents, i.e. those having the right of custody. In case of divorce or separation, the parent(s) who has/have been assigned the right of custody.
4.1. Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?
The child protection authority assigns the right of custody to the other parent if the parent having said right is unable to act (death or placed under guardianship for example). If both parents are unable to act, the child protection authority appoints a custodian.
4.1.1 On whose proposal and when is the decision on appointment of a legal representative made?
The relatives or the social services in charge of the child’s protection a submit a proposal. The decision is delivered in the following 15 days or month.
4.1.2. Is the competent authority free in its choice of a new legal representative?
Yes, the competent authority is sovereign, subject to the right of appeal against its decisions.
4.1.3. Possibility of appointing several representatives?
No, the law provides for the appointment of only one custodian.
4.2. Is the legal representative’s right to represent the minor subject to somerestrictions or to other rules?
4.2.1. Are there some areas in which a legal representative is not competent to act?
A minor capable of discernment may accomplish some transactions himself/herself (art. 19 and subsequent articles SCC). These include:
He/she may acquire rights on a purely free-of-charge basis (donation, receive a non-binding offer, accomplish an action interrupting time limitation, etc.)
He/she may deal with minor, everyday-life matters (purchase of food, train or cinema tickets, etc.)
He/she may exercise his/her strictly personal rights.
However, the law provides for some restrictions regarding the exercise of these rights by the minor alone. These exceptions require the consent of the legal representative (engagement, marriage contracts, recognizing a child, for example) or prohibit the accomplishment of an act (will, inheritance agreement, sterilisation).
4.2.2. Connection between the right of custody and representation rights
Having the right of custody includes the right to represent the minor. If custody is held jointly, then it has to be exercised jointly. However, the Civil Code provides for protection of bona fide third parties who may assume the consent of the other parent.
4.2.3. Requirement that all legal representatives conclude transactions jointly
With the exception of the protection of bona fide third parties, as mentioned under section 4.1.2. hereinabove, all legal representatives must act jointly.
4.2.3.1. List of legal transactions that a legal representative may perform on behalf of the minor, if he/she is acting alone.
If there are several legal representatives, they have to act jointly. In this case, it is the child’s parents (married or unmarried).
4.2.3.2. List of legal transactions into which legal representatives may enter on behalf of the minor only jointly.
With the exception of the protection of bona fide third parties who may assume the consent of the other parent, if the parents hold the right of custody jointly, they always have to act jointly.
4.2.3.3. Requirement of joint representation in case the parents have never been married.
Basic rules do not vary, regardless of the decision to be made. It is necessary to know who has the right of custody, regardless of whether the parents are married or not. Marriage does not change the basic rules.
Married couple: both parents have the right of custody, unless one of them is subject to an adult protection measure or has been deprived of the right of custody by the child protection authority (mistreatment, incapacity, etc.). So, even when a child has a married father and mother, it could be that one of the two has been deprived of the right of custody.
Divorced parents: the divorce judge assigns the right of custody either to one or to both parents. The judge alone decides on the foregoing assignment, taking the child’s interest into due account. Only the divorce judgment or a further court decision modifying this point of the divorce judgment attests to the assignment.
Unmarried parents: the right of custody is assigned to the mother, unless both parents make a written statement and providing the father has recognised the child or that parentage has been acknowledged by means of a court decision. Without this written statement, the child of an unmarried couple is under the custody of the mother.
4.2.4. Restrictions applying to legal representatives
Neither the father or mother, nor the custodian can provide sureties, set up foundations or make donations on behalf of the child, with the exception of habitual gifts.
A legal representative, be it the father or mother, may have a conflict of interest with the child in a succession for example, when it comes to mortgaging or selling property owned jointly by the child and one of the parents.
In cases of conflict of interest, the Child Protection Authority appoints a guardian having a specific mission. This guardian will have to contact the Adult Protection Authority to carry out the transactions listed under art. 416 SCC (dispose of immovable property or other assets, pledge these assets, encumber them with usufruct, take out or grant a loan, etc.), as if the child were an adult subject to protection measures.
4.3. Other restrictions for the persons who have the right of custody or of legal representation of a minor.
No.
4.4. Transferring the right of representation of a minor to another person by means of a power attorney.
No, this is not envisaged under Swiss law.
4.1. Who will appoint the legal representatives, if either one or all parents/other persons) are not able to act anymore (e.g. in case of death or loss of legal capacity)?
The child protection authority assigns the right of custody to the other parent if the parent having said right is unable to act (death or placed under guardianship for example). If both parents are unable to act, the child protection authority appoints a custodian.
4.1.1 On whose proposal and when is the decision on appointment of a legal representative made?
The relatives or the social services in charge of the child’s protection a submit a proposal. The decision is delivered in the following 15 days or month.
4.1.2. Is the competent authority free in its choice of a new legal representative?
Yes, the competent authority is sovereign, subject to the right of appeal against its decisions.
4.1.3. Possibility of appointing several representatives?
No, the law provides for the appointment of only one custodian.
4.2. Is the legal representative’s right to represent the minor subject to somerestrictions or to other rules?
4.2.1. Are there some areas in which a legal representative is not competent to act?
A minor capable of discernment may accomplish some transactions himself/herself (art. 19 and subsequent articles SCC). These include:
He/she may acquire rights on a purely free-of-charge basis (donation, receive a non-binding offer, accomplish an action interrupting time limitation, etc.)
He/she may deal with minor, everyday-life matters (purchase of food, train or cinema tickets, etc.)
He/she may exercise his/her strictly personal rights.
However, the law provides for some restrictions regarding the exercise of these rights by the minor alone. These exceptions require the consent of the legal representative (engagement, marriage contracts, recognizing a child, for example) or prohibit the accomplishment of an act (will, inheritance agreement, sterilisation).
4.2.2. Connection between the right of custody and representation rights
Having the right of custody includes the right to represent the minor. If custody is held jointly, then it has to be exercised jointly. However, the Civil Code provides for protection of bona fide third parties who may assume the consent of the other parent.
4.2.3. Requirement that all legal representatives conclude transactions jointly
With the exception of the protection of bona fide third parties, as mentioned under section 4.1.2. hereinabove, all legal representatives must act jointly.
4.2.3.1. List of legal transactions that a legal representative may perform on behalf of the minor, if he/she is acting alone.
If there are several legal representatives, they have to act jointly. In this case, it is the child’s parents (married or unmarried).
4.2.3.2. List of legal transactions into which legal representatives may enter on behalf of the minor only jointly.
With the exception of the protection of bona fide third parties who may assume the consent of the other parent, if the parents hold the right of custody jointly, they always have to act jointly.
4.2.3.3. Requirement of joint representation in case the parents have never been married.
Basic rules do not vary, regardless of the decision to be made. It is necessary to know who has the right of custody, regardless of whether the parents are married or not. Marriage does not change the basic rules.
Married couple: both parents have the right of custody, unless one of them is subject to an adult protection measure or has been deprived of the right of custody by the child protection authority (mistreatment, incapacity, etc.). So, even when a child has a married father and mother, it could be that one of the two has been deprived of the right of custody.
Divorced parents: the divorce judge assigns the right of custody either to one or to both parents. The judge alone decides on the foregoing assignment, taking the child’s interest into due account. Only the divorce judgment or a further court decision modifying this point of the divorce judgment attests to the assignment.
Unmarried parents: the right of custody is assigned to the mother, unless both parents make a written statement and providing the father has recognised the child or that parentage has been acknowledged by means of a court decision. Without this written statement, the child of an unmarried couple is under the custody of the mother.
4.2.4. Restrictions applying to legal representatives
Neither the father or mother, nor the custodian can provide sureties, set up foundations or make donations on behalf of the child, with the exception of habitual gifts.
A legal representative, be it the father or mother, may have a conflict of interest with the child in a succession for example, when it comes to mortgaging or selling property owned jointly by the child and one of the parents.
In cases of conflict of interest, the Child Protection Authority appoints a guardian having a specific mission. This guardian will have to contact the Adult Protection Authority to carry out the transactions listed under art. 416 SCC (dispose of immovable property or other assets, pledge these assets, encumber them with usufruct, take out or grant a loan, etc.), as if the child were an adult subject to protection measures.
4.3. Other restrictions for the persons who have the right of custody or of legal representation of a minor.
No.
4.4. Transferring the right of representation of a minor to another person by means of a power attorney.
No, this is not envisaged under Swiss law.
parents : if married, then they are the legal representatives; a family certificate may be needed to prove parentage.
divorced parents: the final and enforceable divorce judgment will serve as proof of the right of custody or any other court decision modifying the divorce adjudication.
the custodian provides evidence of his/her appointment by the adult protection authority.
divorced parents: the final and enforceable divorce judgment will serve as proof of the right of custody or any other court decision modifying the divorce adjudication.
the custodian provides evidence of his/her appointment by the adult protection authority.
The person having the right of custody.
If the parents are married, both hold the right of custody jointly.
If the parents are divorced and both have the right of custody (jointly), then both parents.
If the parents are divorced, but only one has the right of custody, then that parent.
If the parents have been deprived of the right of custody that has been assigned to a third party (custodian), then the child’s custodian.
If the parents are married, both hold the right of custody jointly.
If the parents are divorced and both have the right of custody (jointly), then both parents.
If the parents are divorced, but only one has the right of custody, then that parent.
If the parents have been deprived of the right of custody that has been assigned to a third party (custodian), then the child’s custodian.