When adults are no longer able to consistently make competent decisions concerning their person and property, and are unable to communicate those decisions, it may be time to consider petitioning for an interdiction.
Under Louisiana law, individuals over the age of eighteen enjoy the presumption that they are legally competent and capable of managing their own affairs. This means that, even if an elderly person becomes mentally incapacitated to the point where they cannot care for themselves or their property, that person’s family and friends cannot act on their behalf without legal authority. In Louisiana, this transfer of authority to act on a person’s behalf after that person has become incompetent is called an interdiction. Through an interdiction, a court appoints someone to make decisions concerning the body and/or property of the incompetent individual.
Interdictions may be full or limited. Many legal writers have long referred to full interdictions as the “civil death” of the person being interdicted (“interdict”), because interdiction results in an extensive loss of the rights required to care for his own person and property. Some rights relinquished by the interdict include the right to marry, vote, drive, sue or be sued, and make decisions about medical care. Full interdictions are intrusive and complex procedures, and should only be undertaken when absolutely necessary to protect the rights of the interdicted individual.
To avoid the extreme remedy of a full interdiction, Louisiana law offers an alternative, limited interdiction. Louisiana Civil Code article 390 affords a presiding court flexibility to craft the appropriate remedy for an individual who only requires assistance in certain areas of life, and where the person’s “interests cannot be protected by less restrictive means.” In a limited interdiction, the interdict retains all rights not specifically granted to the curator. For example, an individual could relinquish his right to handle his own financial affairs, but retain the right to vote.
The process of seeking an interdiction echoes that of a lawsuit. Whether you are seeking a full or limited interdiction, the procedure is largely the same. The person seeking the interdiction (petitioner) begins by filing a petition for interdiction in the civil district court in the parish of the person he is seeking to interdict (defendant)’s domicile. The court will then hold a hearing, during which the petitioner must prove that the defendant suffers from a mental infirmity.
For a full interdiction, the infirmity must deprive the defendant of his ability to consistently make reasoned decisions regarding the care of his person and property. For a limited interdiction, the petitioner need only show that the defendant’s ability to consistently make reasoned decisions regarding the care of his person or property. In any event, the court will always appoint an attorney to represent the proposed interdict.
The petitioner must prove that the defendant’s inability to care for their person or property is based on an infirmity. Advanced age alone does not constitute an infirmity for the purposes of an interdiction. The infirmity must be caused by a medical condition such as mental illness or retardation. In some cases, chronic substance abuse is considered a sufficient infirmity for an interdiction.
If an interdiction is granted, the interdict’s rights – full or limited – are transferred to a curator. The curator is appointed by the court based on a hierarchy of preferred curators. At the top of the hierarchy is any person who the interdict previously designated in writing before suffering from a mental infirmity. Next in line are the interdict’s spouse, adult children, and parents. Last in the hierarchy is any individual who has lived with the interdict for over six months. Often the person who petitions for the interdiction also seeks to be the interdict’s curator, however a court will look first to whether there are individuals higher in the hierarchy than the petitioner.
Although an interdiction is usually permanent, it is possible to modify or revoke an interdiction. A person arguing for such a modification or elimination must show that the original judgment in favor of the interdiction was excessive or insufficient. A person may also show that the interdict’s condition has changed to a degree that warrants modification or elimination.
If a person has a family history of developing mentally deteriorating conditions, they should consider completing a power of attorney for the health and finances whereby they can specifically designate whom they desire to serve as their curator in the event an interdiction is necessary.
About our law firm
Morrison Law Group, PLC is an estate planning law firm in Metairie, Louisiana. Chip Morrison is Board Certified Specialist in Estate Planning and Administration, as certified by the Louisiana Board of Legal Specialization, and is a member of the American Academy of Estate Planning Attorneys, and offer guidance and advice to our clients in every area of estate planning. We offer comprehensive and personalized estate planning consultations. For more information or to schedule a consultation please contact us at (504) 831-2348 or visit us online at www.morrisonlawplc.com.
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