Elderly individuals being subjected to additional obligations when carrying out legal transactions solely because of their age is a form of discrimination that is frequently encountered in daily life but often remains invisible. The assessment by the Human Rights and Equality Institution of Türkiye (Türkiye İnsan Hakları ve Eşitlik Kurumu, TİHEK) regarding the automatic request for medical reports from persons over 65 in notarial transactions provides an important framework in terms of the rights of the elderly and the prohibition of discrimination.
At the center of the decision lies a simple but critical principle: a person’s age alone is not sufficient to presume that they lack capacity of discernment. Notaries are, of course, obliged to consider the security of the transaction and whether the parties’ will has been formed in a sound manner; however, this oversight must not turn into automatic practices that place elderly individuals in a presumptively suspicious position.
The Issue Assessed by TİHEK: Automatic Requests for Reports Due to Age
According to the shared summary of the decision, TİHEK found it unlawful for notaries to automatically request medical reports from persons over 65 without any concrete, conduct-based suspicion regarding capacity of discernment. The Institution held that this practice constituted a violation of the prohibition of age discrimination.
The issue discussed here is not that notaries can never request a report under any circumstances. The real problem is that the request for a report is tied solely to the crossing of a certain age threshold, without being based on person-specific concrete observations and reasons. In other words, the aim of ensuring legal certainty cannot be used as a justification for automatically treating elderly individuals as lacking capacity or having a weak will.
This distinction is important. The balance to be struck between the security of legal transactions and the prohibition of discrimination can only be achieved by considering the person’s conduct, statements and condition at the time of the transaction in each concrete case. When age becomes the sole and decisive criterion of this assessment, individualized evaluation gives way to stereotype.
The Legal Risk of the Stereotype Equating Old Age with Dementia
It is reported that the decision particularly drew attention to stereotypes equating old age with dementia. This emphasis is important not only for notarial practices, but also for elderly individuals’ access to public services, private law transactions and participation in social life.
It was emphasized that stereotypes equating old age with dementia would lead to interference with the autonomy of elderly individuals, cause their abilities to be questioned, and expose them to a discriminatory, dignity-injuring and traumatic process because of their old age.
This assessment shows that elderly individuals should be seen not only as persons in need of protection, but also as autonomous individuals who have the right to make decisions about their own lives. Even interventions made for protective purposes may harm a person’s dignity when they are disproportionate and generalizing.
Old age is a natural stage of life; on its own, it does not mean mental incapacity, defect of will or lack of capacity to enter into transactions. Therefore, although automatic age-based checks may appear to provide administrative convenience or transaction security, in practice they may make it more difficult for elderly individuals to exercise their rights.
How Should Assessment of Capacity of Discernment Be Handled?
In legal transactions, capacity of discernment concerns a person’s ability to understand the meaning and consequences of the transaction they are carrying out. This assessment should be based on the concrete circumstances at the time of the transaction rather than abstract age limits. The importance of TİHEK’s decision emerges precisely at this point.
For a reasonable and legitimate assessment to be made in notarial transactions, a request for a report is expected to be based on concrete reasons such as the following:
- Clear contradictions between the person’s statements,
- Behavioral indicators showing that the person does not understand the nature or consequences of the transaction,
- Observable significant difficulties in communicating, declaring will or making decisions,
- The emergence of concrete suspicion that the person’s will may have been impaired in terms of the parties to or conditions of the transaction.
By contrast, seeing from identity information alone that a person is over 65 and therefore automatically requesting a report shows that no individualized assessment has been made. This not only undermines the principle of equal treatment, but also unnecessarily burdens elderly individuals’ access to legal transactions.
The Balance Between Equality and Transaction Security in Notarial Practice
Notarial activities perform an important public function that lends trust to legal transactions. It is therefore natural for notaries to consider the will of the parties to a transaction and transaction security. However, this duty must be performed in accordance with the prohibition of discrimination.
The message of TİHEK’s decision is that transaction security cannot be surrendered to age-based generalizations. A person cannot be deemed to have capacity of discernment because they are young, while being treated as suspicious because they are elderly. The assessment must be based on personal observation and concrete facts.
This approach also creates a healthier practice standard for notaries. If a report request is necessary, the reason for it must be clear, person-specific and connected with the transaction. In this way, both the security of legal transactions is protected and arbitrary or automatic practices that harm the dignity of the elderly individual are prevented.
Why Are the Rights of the Elderly Becoming Increasingly Visible?
The post states that, due to the rising average age in our country and the decline in preferences for extended family living, the rights of the elderly are being violated more and more each day. This observation shows that the field of elderly rights is not only a matter of social policy, but also a matter of fundamental rights and the prohibition of discrimination.
Elderly individuals may face the risk of rights violations in many areas, such as access to healthcare services, banking transactions, title deed and notarial transactions, care relationships, inheritance planning and participation in social life. Some of these risks arise as clear violations, while others become visible through practices that are thought to be well-intentioned but restrict the person’s autonomy.
For this reason, the basic approach to elderly rights should not be solely protection-oriented. Protection and autonomy should be considered together; the will, dignity and right to make decisions of the elderly individual should be placed at the center. TİHEK’s decision may also be regarded as an important example that recalls this balance.
The Importance of Institutional Awareness: Elderly Rights Centers
The post also states that an Elderly Rights Center was established within the Istanbul Bar Association (İstanbul Barosu) in 2023, but that this center was closed after the elective general assembly. This information brings the importance of institutional continuity in the field of elderly rights to the agenda.
Although violations of elderly rights often appear to be individual incidents, there may be a systemic lack of awareness in the background. For this reason, the existence of structures focusing on elderly rights within bar associations, public institutions, professional organizations and civil society organizations is important.
Such centers can contribute both to identifying rights violations and to raising awareness among practitioners. It is particularly necessary to strengthen a rights-based approach in fields that frequently come into contact with elderly individuals, such as notarial services, healthcare, social services and local administrations.
How Should the Prohibition of Age Discrimination Be Understood in Practice?
Age discrimination does not always appear in the form of explicit exclusion. Sometimes imposing additional procedures on persons in a certain age group, making it more difficult for them to carry out transactions, or constantly questioning their will may also produce discriminatory consequences.
In this context, the basic distinction that may be drawn from TİHEK’s decision is as follows:
| Practice | Legal Assessment |
|---|---|
| Automatically requesting a medical report solely because the person is over 65 | Carries a risk of age discrimination |
| Requesting a report where there is concrete, conduct-based suspicion | May be legitimate depending on the concrete justification |
| Applying the same individualized assessment criteria to every age group | More consistent with the principle of equality |
This table shows the practical meaning of the decision in a simple way. The criterion should not be age, but the person’s concrete condition at the time of the transaction. Otherwise, elderly individuals’ exercise of their rights becomes subject to a more burdensome and dignity-injuring process compared with other individuals.
What Does This Mean in Practice?
TİHEK’s assessment points to a broader principle that is not limited to notarial transactions: elderly individuals’ exercise of rights cannot be restricted by age-based stereotypes. While security is ensured in legal transactions, the person’s autonomy and human dignity must be protected.
The main points to be considered in practice are as follows:
- Being over 65 should not, on its own, be accepted as a sufficient reason to request a medical report.
- If there is suspicion regarding capacity of discernment, that suspicion must be based on concrete conduct and observations.
- In notarial practices, transaction security and the prohibition of discrimination should be assessed together.
- The autonomy of elderly individuals should not be disproportionately restricted on the grounds of protection.
- Institutional awareness and continuity in the field of elderly rights should be strengthened.