Which Law Governs the Capacity, Guardianship, Restriction and Trusteeship of Foreign Nationals, and When Are Turkish Courts Competent?

Metni birebir kelime kelime çevirmek yerine, MÖHUK (Turkish Private International Law) terminolojisini İngilizce hukuk diline uygun şekilde aktaracağım. Özellikle ehliyet → legal capacity, vesayet → guardianship, kısıtlılık → restriction of legal capacity, kayyımlık → trusteeship/curatorship, millî hukuk → national law, mutad mesken → habitual residence şeklindeki kavramsal karşılıkları tutarlı kullanacağım.

Yaklaşık 2.000 kelimelik, makale formatında ve başlıklandırılmış İngilizce metin şöyle:

Which Law Governs the Capacity, Guardianship, Restriction and Trusteeship of Foreign Nationals, and When Are Turkish Courts Competent?

The legal status of foreign nationals residing in Türkiye may raise a number of important issues under private international law. Questions may arise as to whether a person has the legal capacity to perform a particular legal act, whether that person can personally exercise his or her rights, or whether protective measures such as guardianship, restriction of legal capacity or trusteeship should be imposed.

These issues become particularly significant where a foreign national resides in Türkiye, owns property in Türkiye, conducts business activities, has family relations in Türkiye, or becomes involved in proceedings before Turkish courts.

In such cases, the main question is not simply whether Turkish courts have jurisdiction. It is also necessary to determine:

• which law governs the person’s legal capacity;
• which law governs the grounds for guardianship or restriction;
• when Turkish law may apply to a foreign national;
• which law governs trusteeship;
• whether Turkish courts have international jurisdiction; and
• whether a decision rendered by a Turkish court will be recognized or enforced abroad.

The principal provisions governing these issues are Articles 9 and 10 of Law No. 5718 on Private International Law and International Civil Procedure (MÖHUK).

1. Which Law Governs the Legal Capacity of Foreign Nationals?

Under private international law, an important distinction must be made between legal capacity to have rights and capacity to act.

Legal capacity refers to a person’s ability to possess rights and assume obligations. Capacity to act, on the other hand, concerns a person’s ability to acquire rights, undertake obligations and produce legal consequences through his or her own acts.

For example, where a foreign national purchases immovable property in Türkiye, signs a contract or performs another legal transaction, the person’s capacity to act may become relevant.

The principal rule is contained in Article 9 of MÖHUK.

Under Article 9(1), the capacity to have rights and the capacity to act are governed by the person’s national law.

Accordingly, the fact that a foreign national resides in Türkiye does not, by itself, mean that Turkish law governs that person’s legal capacity. As a general rule, the law of the person’s nationality must first be determined and applied.

For example, if a German national residing in Türkiye enters into a legal transaction, his or her capacity to act will, as a general rule, be assessed under German law.

2. Exceptions Concerning Transactions Performed in Türkiye

Article 9 of MÖHUK does not establish an entirely unconditional rule based solely on national law.

Article 9(2) provides an important exception. Where a person lacks capacity under his or her national law but has capacity under the law of the country where the transaction is performed, the person may nevertheless be bound by the transaction.

However, this rule does not apply to matters of family law and succession law, nor to transactions concerning rights in rem over immovable property located in another country.

Therefore, in international transactions, it may sometimes be necessary to consider both the person’s national law and the law of the place where the transaction was performed.

3. Change of Nationality and Acquired Majority

Article 9(3) of MÖHUK provides that majority acquired under a person’s national law does not cease merely because the person subsequently changes nationality.

This provision is particularly relevant where a person’s nationality changes after he or she has already acquired legal majority.

Consequently, the legal status acquired under the person’s former national law may continue to have legal significance despite a subsequent change of nationality.

4. Guardianship, Restriction and Trusteeship: Article 10 of MÖHUK

The most important provision concerning guardianship, restriction of legal capacity and trusteeship is Article 10 of MÖHUK.

The provision distinguishes between:

1. the grounds for imposing or terminating guardianship or restriction;
2. situations where guardianship or restriction is not available under the person’s national law but protection is necessary in Türkiye; and
3. other matters relating to guardianship and restriction, as well as trusteeship.

Therefore, it would be incorrect to assume that all aspects of guardianship, restriction and trusteeship are governed by one single legal system.

5. Which Law Governs the Grounds for Guardianship or Restriction?

Under Article 10(1) of MÖHUK, the grounds for imposing or terminating guardianship or restriction of legal capacity are governed by the national law of the person concerned.

This is particularly important when a foreign national residing in Türkiye is the subject of a request for restriction.

For example, if a restriction order is requested against a foreign national on the grounds of mental illness, addiction, excessive spending or another legally relevant circumstance, it is necessary to determine whether the relevant circumstance constitutes a ground for restriction under the person’s national law.

Accordingly, Turkish courts should not automatically apply the substantive provisions of the Turkish Civil Code merely because the person is physically present in Türkiye.

The applicable law must first be determined under Article 10 of MÖHUK.

6. What Happens if Guardianship or Restriction Is Not Possible Under the National Law?

Article 10(2) of MÖHUK provides an important protective mechanism.

Where guardianship or restriction is not possible under the person’s national law, and the person has his or her habitual residence in Türkiye, guardianship or restriction may be imposed or terminated under Turkish law.

Turkish law may also apply where the person is compulsorily present in Türkiye.

This provision is particularly important for the protection of foreign nationals who actually live in Türkiye and require legal protection.

For example, if the national law of a foreign national does not provide for a particular protective measure but the person requires protection while habitually residing in Türkiye, Turkish law may become applicable under Article 10(2).

7. Why Is Habitual Residence Important?

The concept of habitual residence plays an important role under Article 10 of MÖHUK.

The mere physical presence of a foreign national in Türkiye does not necessarily establish habitual residence.

A tourist who stays in Türkiye for a few weeks, a person temporarily residing in Türkiye for several months, and a person who has lived in Türkiye for many years with his or her family and economic activities cannot necessarily be treated in the same way.

The determination of habitual residence requires an assessment of the person’s actual and stable connection with Türkiye, including the centre of his or her life and regular social, family and economic relationships.

Accordingly, the mere existence of a residence permit or the mere passage of a certain period of time may not always be decisive.

8. Which Law Governs Matters Arising After Guardianship or Restriction Has Been Imposed?

Article 10(3) of MÖHUK makes an important distinction.

All matters concerning guardianship or restriction other than the grounds for imposing or terminating such measures are governed by Turkish law.

The same provision expressly provides that trusteeship is also governed by Turkish law.

The system can therefore be summarized as follows:

• Grounds for guardianship or restriction: generally the person’s national law;
• Termination grounds: generally the person’s national law;
• Other matters relating to guardianship and restriction: Turkish law;
• Trusteeship: Turkish law.

This distinction is particularly important in practice.

9. Which Law Governs Trusteeship?

Under Article 10(3) of MÖHUK, trusteeship is governed by Turkish law.

Therefore, where a trustee must be appointed for a foreign national in Türkiye, Turkish law will generally determine the conditions for appointment, the trustee’s duties and powers, and the termination of the trusteeship.

Articles 426 and following of the Turkish Civil Code No. 4721 are particularly relevant in this respect.

Under Article 403 of the Turkish Civil Code, a guardian protects the personal and property interests of a person under guardianship and represents that person in legal transactions. A trustee, by contrast, is appointed to perform a specific task or administer property.

10. Appointment of a Representative Trustee

Article 426 of the Turkish Civil Code regulates circumstances in which a representative trustee may be appointed.

Such an appointment may become necessary, for example, where:

• an adult cannot conduct a particular urgent transaction because of illness;
• the person is absent;
• the person is unable to appoint a representative;
• there is a conflict of interests between the legal representative and the protected person; or
• the legal representative is unable to perform the relevant duty.

These provisions may be particularly significant in international cases where a foreign national is absent from Türkiye or cannot personally conduct a necessary legal transaction.

11. Appointment of an Administrative Trustee

Article 427 of the Turkish Civil Code regulates administrative trusteeship.

A trustee may be appointed where property requires administration but there is no person legally responsible for its management, or where another statutory ground for trusteeship exists.

For example, if a foreign national cannot be located and owns assets in Türkiye that require administration, the appointment of an administrative trustee may become relevant.

Because Article 10(3) of MÖHUK expressly subjects trusteeship to Turkish law, the relevant provisions of the Turkish Civil Code may apply regardless of the foreign national’s nationality.

12. Restriction Grounds Under the Turkish Civil Code

Where Turkish law is applicable, the provisions of the Turkish Civil Code concerning restriction become relevant.

Article 405 of the Turkish Civil Code concerns adults who, due to mental illness or mental disability, are unable to manage their affairs, require continuous assistance and protection, or pose a danger to others.

The Turkish Civil Code also provides for restriction in circumstances including:

• excessive spending;
• alcohol or drug dependency;
• a disorderly or immoral lifestyle;
• mismanagement of property;
• imprisonment under circumstances specified by law; and
• voluntary restriction at the person’s own request.

However, where the person concerned is a foreign national, these provisions should not be applied automatically. The court must first determine the applicable law under Article 10 of MÖHUK.

13. Guardianship of Minors

Guardianship is not limited to adults.

Article 404 of the Turkish Civil Code provides that minors who are not under parental custody are placed under guardianship.

This provision may become relevant to foreign minors residing in Türkiye.

However, the foreign nationality of the child creates an international element. Therefore, before directly applying Article 404, the court should consider Article 10 of MÖHUK and any applicable international conventions.

The child’s nationality, habitual residence, family circumstances and actual situation in Türkiye may all be relevant.

14. When Are Turkish Courts Internationally Competent?

The determination of the applicable law and the determination of international jurisdiction are two separate legal questions.

Even where foreign law is applicable, this does not necessarily mean that Turkish courts lack jurisdiction.

The international jurisdiction of Turkish courts is generally assessed under Article 40 and following provisions of MÖHUK.

Therefore, in a guardianship or restriction case involving a foreign national, two separate questions must be answered:

First: Do Turkish courts have international jurisdiction?

Second: If Turkish courts have jurisdiction, which country’s law must they apply?

These questions may have different answers.

For example, a Turkish court may have international jurisdiction over a case while being required to apply the foreign national’s national law when determining the grounds for restriction.

At the same time, Turkish law may govern other aspects of the same guardianship proceeding or a trusteeship matter.

15. Foreign Nationals Habitually Residing in Türkiye

The position of a foreign national whose habitual residence is in Türkiye is particularly important.

Where the conditions of Article 10(2) are satisfied, Turkish law may govern guardianship or restriction where such protection is unavailable under the person’s national law.

This mechanism aims to ensure that persons who actually live in Türkiye are not left without legal protection merely because their national legal system does not provide an equivalent protective institution.

Nevertheless, habitual residence must be determined on the basis of the circumstances of each individual case.

16. Foreign Nationals Temporarily Present in Türkiye

Not every foreign national present in Türkiye can automatically rely on Turkish law.

For example, a French national who habitually lives in France but spends a few weeks in Türkiye cannot necessarily be treated in the same manner as a person who has lived in Türkiye for many years and whose family, employment and economic life are centred there.

Therefore, the person’s nationality, habitual residence, reason for being in Türkiye and other connecting factors must be assessed together.

17. Recognition of Turkish Guardianship Decisions Abroad

A further issue arises where a guardianship, restriction or trusteeship decision rendered by a Turkish court needs to produce legal effects in another country.

A decision rendered in Türkiye is not necessarily automatically recognized abroad.

The law of the foreign country may require a separate recognition procedure or may impose specific conditions for accepting foreign judicial decisions.

For example, if a Turkish court restricts the legal capacity of a German national residing in Türkiye, the effect of that decision in Germany may depend on the relevant rules of German private international law and recognition procedures.

Therefore, the validity of the decision in Türkiye and its recognition abroad should be treated as separate issues.

18. Documents Commonly Relevant in Practice

Depending on the circumstances, the following documents may become relevant:

• passport or identity documents;
• residence documents;
• civil-status records;
• medical reports;
• documents proving nationality;
• property records;
• land registry records;
• powers of attorney;
• foreign court decisions;
• apostilled documents; and
• certified translations.

Documents issued by foreign authorities may require apostille certification, consular procedures, notarization or certified translation before they can be used in Türkiye.

Conclusion

The legal treatment of legal capacity, guardianship, restriction and trusteeship involving foreign nationals in Türkiye requires a careful application of private international law rules.

The principal provisions are Articles 9 and 10 of MÖHUK.

Under Article 9, a person’s legal capacity and capacity to act are generally governed by the person’s national law, subject to the exceptions provided by the legislation.

Under Article 10, the grounds for imposing or terminating guardianship or restriction are generally governed by the person’s national law.

However, where guardianship or restriction is not possible under the person’s national law and the person has his or her habitual residence in Türkiye, Turkish law may apply. Turkish law may also apply where the person is compulsorily present in Türkiye.

Other matters relating to guardianship and restriction, as well as trusteeship, are governed by Turkish law.

Accordingly, the legal analysis should generally follow this sequence:

First, determine the person’s nationality, habitual residence and other relevant connecting factors.

Second, identify the applicable conflict-of-laws rule under MÖHUK.

Third, determine whether Turkish courts have international jurisdiction.

Fourth, apply the relevant substantive law, including the provisions of the Turkish Civil Code where Turkish law is applicable.

Finally, if the decision needs to produce legal effects abroad, examine the recognition requirements of the relevant foreign country.

The key point is that neither of the following approaches is necessarily correct:

“The person is a foreign national, therefore foreign law must always apply.”

Nor:

“The person lives in Türkiye, therefore Turkish law must always apply.”

The correct approach requires an examination of the person’s nationality, habitual residence, circumstances of presence in Türkiye, family and personal relationships, property, need for protection, and any applicable international conventions.

In practical terms, the framework may be summarized as follows:

MÖHUK Articles 9 and 10 → determination of applicable law → MÖHUK Article 40 and following provisions on international jurisdiction → relevant provisions of the Turkish Civil Code → recognition and effects of the decision abroad.

This framework is particularly important in cross-border cases involving foreign nationals who reside in Türkiye, own property in Türkiye, have family relationships in Türkiye or require judicial protection through guardianship, restriction or trusteeship.