Louisiana Attorneys Help Clients Deal with a Family Member’s Incapacity
Covington and Metairie law firm assists with interdiction proceedings
When a person afflicted with an infirmity is consistently unable to make or communicate reasoned decisions about their property or their personal affairs, a court may appoint someone to take over some or all of those functions. This process, known as interdiction, requires complex analysis and proofs that must be handled with the utmost skill and care. At Conroy Law Firm, APLC, we have experience representing families taking the painful but necessary action of divesting a loved one of his or her independence. With offices in Covington and Metairie, we handle interdiction matters throughout Southern Louisiana.
What is interdiction in Louisiana?
Louisiana has distinctive legal terminology that differs from most of the country. If you live somewhere else, you might have heard what is known here as interdiction referred to as a conservatorship or guardianship hearing. Our firm provides sound guidance throughout the legal process for determining whether an adult has lost the capacity to manage matters related to their health, general welfare or finance. In these cases, the court looks at evidence and hears testimony to ascertain if the person in question should have someone appointed to look after these matters. The literal meaning of interdiction is the act of stopping something from occurring. In an interdiction, the court is preventing an adult with an infirmity from acting on their own behalf and passing that authority onto someone else.
Some of the terms you need to know are:
- Interdict — This is the word for the person who, after a hearing, has been judged in need of assistance. Other jurisdictions refer to this person as the ward.
- Curator — This is the person appointed by the court and given legal authority to act on the interdict’s behalf. Other jurisdictions would call this person a guardian or conservator.
- Undercurator — A person the court appoints to makes sure the curator is acting in the interdict’s best interests.
- Full interdiction — This refers to a court order relieving the interdict of all authority over decisions pertaining to their health, welfare and finances.
- Limited interdiction — This court order transfers legal authority over specific areas of concern, such as medical decisions or finances.
Alternatives to interdiction exist. An adult who concedes the need for assistance can execute power of attorney documents to transfer authority over finances or medical decisions to a trusted relative or associate.
Deciding between full and limited interdiction
When deciding an interdiction case, judges favor the least restrictive measures necessary to protect the interests of the individual requiring assistance. Based on the recommendation of a mental health professional and other evidence, the judge may order a limited or full interdiction.
A full interdiction is ordered when a court determines that someone is incapable of consistently making decisions about his or her person and property. As a result, that person will not be capable of doing anything of legal significance, such as entering into a contract or drafting a will. If the determination is made that the incapability relates to decisions about either personal care or property, or some part of either, a limited interdiction may be ordered.
Deciding whether a lack of capacity is limited in type or degree is difficult and at times is a matter of opinion. The court will always use the best interests of the proposed interdicted person as its guiding principle.
Understanding the interdiction process
Any person may petition for interdiction in a court where the person to be interdicted lives or may be found. The petition must state:
- Petitioner’s relationship to the proposed interdict
- The place where the petitioner believes the proposed interdict should reside
- The reasons why interdiction is necessary
- If petitioner seeks full interdiction, why limited interdiction is inadequate
- If petitioner seeks limited interdiction, what specific capacity to be removed from the proposed interdict
- The name and address of certain relatives of the proposed interdict, of his or her legal representative and any previous curators
- The name and address of the proposed curator and why he or she should be appointed.
The proposed interdict is entitled to a hearing, though the court may grant interdiction temporarily in advance if it is necessary to protect the interdict. Once granted, a permanent interdiction may be modified or terminated if it is excessive or inadequate or when changed circumstances require a change.
Appointing curators and undercurators
When an interdiction is ordered, the court appoints a curator — an individual similar to a guardian or conservator in other states. A curator is given authority to make the decisions the interdicted person is incapable of handling. Examples are decisions about medications and treatment, management of finances, placement in residential facilities and obtaining legal assistance if necessary.
The curator must use reasonable care, diligence and prudence to act in the best interests of the interdicted person and must file an annual report with the court. Some of these decisions might require court approval. A curator may be liable for negligent or intentional misconduct or omissions.
The court may also appoint an undercurator to make sure that the curator performs his or her duty responsibly. The undercurator has complete access to the interdicted person and to the curator’s accounts and reports. An undercurator must inform the court if he or she believes that the curator has failed in his or her duty and can request that the court appoint a different curator.
Contact a Covington attorney if you have questions about interdiction
Conroy Law Firm, APLC has a tradition of serving clients throughout the greater New Orleans area from offices in Covington and Metairie. We understand the need to be supportive and informative when dealing with sensitive family law issues like such as interdiction. To learn about your legal options, call us at 985-606-3885 or contact us online.