A Guide to Interdiction
Authored By: Advocacy Center
What is interdiction and what does it do?
Interdiction is probably the best known way to change the legal status of a cognitively impaired or elderly person and has long been used in Louisiana courts. Interdiction is, however, the most intrusive procedure affecting an individual's rights and responsibilities and is often more sweeping in its effect than is really needed to meet a person's needs. The interdicted person, often called the interdict, loses the right to take care of his own person and property. These rights are transferred to an individual chosen by the court. This person is called the curator (or "curatrix" in the case of a woman). Because of the extensive loss of rights that results from a judgment of interdiction, it is sometimes called a "civil death" for the interdict.
The law also allows for limited interdiction. In limited interdiction, some decision-making authority is transferred to a curator, but the individual retains all other rights not specifically granted to the curator. Limited interdiction allows a curator to help an individual with his real needs without infringing on his other rights.
What rights are lost by a person who is interdicted?
The Right to Contract. A person who is fully interdicted does not have the legal capacity to enter into a contract of any kind. Because almost all commercial transactions are considered contracts, an interdicted person loses the right to buy, sell, or mortgage real estate, or to open a bank account. While an interdicted person may "own" property, he or she cannot sell it, exchange it, or use it to buy other things. All of these rights and responsibilities are transferred to the curator.
The Right to Marry. Under Louisiana law, marriage is considered a civil contract. Lacking the legal capacity to contract, a person who is fully interdicted cannot marry.
The Right to Vote. Both state law and the Louisiana Constitution provide that a person who is interdicted cannot register to vote or vote. If registered before a court issues a judgment of interdiction, the person will be notified by the registrar of voters that he cannot vote as long as the judgment remains in effect.
The Right to Accept or Renounce Successions. An interdict cannot accept or renounce (give up) an inheritance on his own behalf. These actions must be taken by the curator.
The Right to Sue or be Sued. A person who is fully interdicted cannot start a lawsuit to enforce his own rights, but must rely on a curator to sue someone for him. Also, a person who is interdicted cannot be named as a defendant in a lawsuit, except for tort and family law suits. Another exception is that the interdict keeps the capacity to sue in his own name to revoke (cancel) the interdiction.
Other Rights. An interdict loses the right to drive a motor vehicle, consent to his own medical treatment, leave the state without permission, and engage in most decision-making about his own life.
All of the rights described above, except the right to seek revocation of the interdiction, are lost by a person who is the subject of a full interdiction. While such a broad withdrawal of a person's rights may be necessary in some circumstances, it is often more appropriate to consider an alternative to full interdiction.
Is there any alternative to full interdiction?
Yes. It's called limited interdiction. Recognizing the severe deprivation of rights resulting from a judgment of interdiction, in 1981 the Louisiana legislature passed a law providing for limited interdiction as to the person or property. In 2001, the law was again modified to provide for limited interdiction only to those interests of the person or property that necessitates interdiction.
Limited interdiction will infringe on the rights of the interdict only to the extent that his rights cannot be protected by any less restrictive ways. While some decision-making authority is given to a curator, the interdict keeps all other rights not specifically granted to the curator. For example, an adult with moderate mental impairment, or an elderly person who has developed an infirmity affecting his decision-making, may need help with financial management only. Through a limited interdiction, a curator can be given the authority to manage this person's funds without taking away his right to vote, marry and make all of those daily decisions of which he is capable.
Are the procedures different for full and limited interdiction?
No, the procedures are essentially the same for both. Any differences are explained below. It is important to remember that an interdiction is like any other lawsuit, and requires that all the formalities specified by law be followed. The person seeking the full or limited interdiction of another is called the "petitioner." The person who is the subject of the proceeding is called the "defendant."
Who is the proper subject of an interdiction proceeding?
The law requires that the subject of an interdiction be:
- at least 18 years old, or an emancipated minor.
- unable to consistently make reasoned decisions about the care of his person (that is, unable to make day-to-day decisions about daily living activities, health and medical care, residential placement) and/or property (that is, inability to manage financial affairs, personal property or real estate), or unable to communicate these decisions in a way understandable to others.
For full interdiction, you must prove that the defendant is unable to make decisions for his person and property. This is a more difficult standard to meet than for limited interdiction. For limited interdiction, you only have to prove that the defendant is unable to make decisions for his person, or property, or any aspect of either.
- unable to care for person or property or communicate effectively because of an "infirmity."
The condition that mental illness, mental retardation, or other incapacity that gives rise to the need for either kind of interdiction must be of a very serious nature. It must result in a significant impairment of the person's ability to exercise his own judgment (for example, chronic substance abuse may qualify as such an infirmity, but advanced age alone does not). If the problem is a person's inability to communicate due to physical impairment, the law says that a defendant who has any means of communicating his desires to others is not a proper subject for interdiction. If a physically-impaired person's mental faculties are intact, there is no need for an interdiction, limited or otherwise.
Who can get someone else interdicted?
Anyone can try to get the interdiction of another person. However, if the petitioner has not had a significant relationship with the person before filing the interdiction, the court will look closely at the motive to be sure there are no improper reasons behind his seeking legal control over the defendant's person and property.
Where does one file a petition for interdiction?
Generally, file a petition for interdiction in the civil district court in the parish where the defendant is domiciled (a domicile is one's true, fixed and permanent home). If the defendant has no domicile in the state of Louisiana, then the petition is filed in the parish where he resides. If he has no domicile and no residence in Louisiana, then file the petition in whatever parish he is found. You cannot file a petition in whatever parish you find convenient. Once a judgment of interdiction is granted, all later proceedings must be brought in the parish where the judgment was made.
Who pays for the cost of an interdiction?
As in any other legal proceeding, there are several costs associated with an interdiction. The court can assign these costs to either party as it sees fit:
1. Cost of the petitioner's attorney. The petitioner will not get his attorney's fees paid if the judgment is against him, or if the case is dismissed.
2. Fees to file the petition in court and have the sheriffs serve (deliver) the petition on the defendant. These fees may be waived (not collected) if the petitioner proves he is indigent (that is, unable to pay these costs). It is not common for the court to waive these fees.
3. Cost of the attorney appointed by the court to represent the defendant. The court fixes this fee at the end of the case, and orders it to be paid. The amount of the fee depends on the case.
4. Costs such as payment for medical or psychological evaluations or expert witnesses that may be needed to prove the case.
5. Money damages that the petitioner might have to pay if he loses the case and the court determines that he knew or should have known that what he said about the defendant to try to get an interdiction were false. This doesn't happen very often, but the court may order the petitioner to pay damages to the defendant, as well as pay all costs of the lawsuit.
Anyone thinking about bringing a petition for interdiction should talk about the actual costs with his lawyer so that there will be no surprise as the case proceeds.
How does the defendant learn that a petition for interdiction has been filed?
As in every other type of lawsuit, the defendant in an interdiction proceeding must be served by the sheriff's office with a citation and a copy of the petition that has been filed against him. The sheriff should serve the defendant personally, but if the defendant lives out of state, service may be made on anyone over the age of 18. Also, all of the parties named in the petition (the defendant's spouse, children, parents or other people with an interest in the defendant's well-being) must receive a copy of the petition by certified mail.
How does the defendant respond?
The law requires the defendant to file a timely response or answer to the lawsuit. If able, the defendant should contact a lawyer as soon as he gets the petition so that he can file an answer. The answer is usually a general denial of all of the allegations in the petition.
If the defendant does not answer, or if he answers in person, the petitioner must apply for the court to appoint an attorney for the defendant. The court must appoint an attorney to represent the defendant, if he does not already have one. A defendant in an interdiction suit cannot appear in court without a lawyer.
Once appointed to represent the defendant, the attorney must meet with the defendant personally to discuss the case and to review any records that may aid him in preparing the case, unless excused by the court for a good reason. The appointed attorney must then file an answer to the petition.
Does an interdiction proceeding require a court hearing?
Yes. Interdiction hearings are called "summary proceedings." This means they are considered so important by the court that they come before most other matters on the court's schedule. This means that a hearing should be scheduled without the delays in other lawsuits. This also means that the judge (there is no jury) makes a decision at the end of the hearing or within a short time after.
There is an exception to the hearing requirement. The law lets the judge order "temporary" and "preliminary" interdictions when:
- A petition for interdiction is pending;
- there is substantial likelihood that the interdiction will succeed; and
- there is a potential for imminent substantial harm to the interdict.
A temporary interdiction may be granted without a hearing if the evidence given to the court shows that there is an immediate threat of irreparable injury, loss, or damage before the interdiction hearing can be held. As protection for the interdict, an order granting a temporary interdiction must set a hearing for a preliminary interdiction within 10 days. The preliminary interdiction can last up to 30 days, and can be extended for good cause by the court no more than 30 more days (maximum total of 60 days).
What happens at the hearing?
At the hearing:
- The petitioner must prove the allegations in the petition. This means that he must prove that the defendant suffers from some type of infirmity that keeps him from making reasoned decisions about the care of his person and/or property. The petitioner always has the burden of proving the case against the defendant, by "clear and convincing" evidence.
- The defendant must be at the hearing and cannot be absent without a good reason. If the defendant cannot come to the courtroom, the judge can hold the hearing where the defendant is. The judge may also require the curator to attend the hearing.
- Expert witnesses may testify for either side. It the judge thinks it is necessary, the defendant may be examined before the hearing by an expert with training or experience in the type of infirmity alleged, such as a psychologist or psychiatrist.
- The defendant may testify and the judge may directly question him to determine his capacity.
- Other witnesses may testify and be cross-examined by either side.
If the court denies interdiction, the case is over unless the petitioner decides to question the judge's decision by filing an appeal to a higher court. If the interdiction is granted, or if the judgment of interdiction is appealed by the defendant and affirmed on appeal, the court will appoint a curator and undercurator in the judgment.
The judgment should clearly say what responsibilities are to be assumed by the person appointed as the interdict's curator. If the interdiction is temporary or preliminary, the judgment will also state the date on which the interdiction will end.
How does the court appoint a curator?
The curator is the person appointed by the court to act on behalf of the interdict. Often, the petitioner will ask to be appointed curator. However, not all petitioners will be named as curators. Some people by law are preferred as curators:
- Anyone the interdict previously named in writing, when the interdict was in sound mind. Thus, a competent person can name a person in advance to become his curator should the need arise in the future. This person will be appointed curator unless the court disqualifies him. If there is no one named in writing, the next preferences go to
- the interdict's spouse, adult child, parent, or person with whom the interdict has lived for more than 6 months, in that order.
If there is no one in these groups, the court appoints the applicant who is best qualified to serve as curator. Who is best qualified depends on the individual needs of the interdict.
Under no circumstances can any of these people be appointed as curator:
- A minor;
- an interdicted person; or
- a person not a resident of Louisiana who has no resident contact.
Only in very rare cases will a court consider these people as a curator:
- A convicted felon;
- a person indebted to the interdict;
- a person who is an adverse party in a lawsuit in which the interdict is involved; or
- an owner, operator or employee of a long-term care facility where the interdict is receiving care, unless that person is a relative of the interdict.
What requirements must a curator fulfill?
1. Post bond. A curator must post bond as security for the faithful performance of his duties, but only if the curator is given authority over the interdict's property. This bond should equal the total value of the interdict's estate, based on an inventory or detailed listing of the interdict's property.
2. Take and sign an oath that he will perform his duties faithfully.
Once the bond (if required) and the oath are submitted to the court, the clerk will issue letters of curatorship to the curator within 10 days as proof of his authority to act on behalf of the interdict. The letter will also state the specific powers given to the curator and the expiration (ending) date of the interdiction, if that applies.
What is the role of the curator?
The extent of the curator's duties and authority depends on the court's judgment. If the court grants a full interdiction, the curator will:
- be responsible for making all personal decisions for the interdiction, such as where he lives, works, goes to school, and so on.
- consent to medical treatment for the interdict (although consent to procedures affecting the interdict's ability to have children require court order, and the law protects an interdict from being removed from this state, or from being placed in mental health or long-term care facilities, without court approval). The court allows for limited emergency medical treatment without the curator's consent.
- bring all lawsuits on behalf of the interdict.
- administer the estate and manage the finances of the interdict, for the interdict's benefit (any money or assets of the interdict must be used only for his needs and not for the curator).
To protect the interdict and his property, the court requires the curator to file an accounting of the interdict's condition and location, as well as his assets, income and expenses. This is required at least once a year, and more often if the court orders it. The curator must keep detailed records of income, resources and expenses, to be prepared to file an accounting.
In a limited interdiction, the judgment must specifically list the duties and responsibilities of the curator. The curator's role is defined by the judgment. All authority not specifically granted to the curator in the judgment is kept by the interdict.
In both kinds of interdiction, the curator should consider the desires of the interdict (as expressed both before and after the interdiction), as well as the interdict's religious beliefs or other things that would indicate his wishes. The curator should involve the interdict to the greatest extent possible in all decision-making, and he should encourage the interdict's independence.
In exceptional cases, the court may appoint 2 curators to care for the interdict, if necessary to be sure all the interdict's needs are adequately addressed. For example, a court may want to appoint 1 curator to care for the interdict and make personal decisions, and another to manage the estate.
What is the undercurator's role?
Every interdict must have an undercurator as well as a curator. The major role of the undercurator is to watch over the curator, and to see that the curator is fully and responsibly carrying out his duties to the interdict. The undercurator has access to all information needed to be sure the interdict's best interests are being protected. This duty requires the undercurator to:
- Bring any suspected problem to the court's attention.
- Notify the court if the curator dies or is otherwise unable to perform his duties, and suggest a replacement for the curator.
- Sign and file an oath to faithfully perform his duties (but the undercurator does not have to post a bond).
When can a curator be removed?
Any interested person can ask the court to remove a curator. He has to show the court that neither the curator nor the undercurator are adequately performing their duties. The court can also, on its own, remove a curator if it appears that the removal is in the interdict's best interest.
In deciding whether to remove a curator, the court will look at whether the curator:
- Has been grossly negligent or intentionally embezzled the interdict's property;
- Has failed to submit an accounting;
- Has failed to obey any court order;
- Has committed gross misconduct or mismanagement;
- Is himself incompetent, incarcerated, or in any other way incapable of performing his duties;
- Is abusing the interdict, failing to educate him, or failing to give him as much independence as possible.
When the court removes a curator for any of these reasons, the court may appoint as new curator a spouse or relative of the interdict, another interested party, or an appropriate nonprofit organization.
What if either party disagrees with the court's judgment?
Any of these court decisions can be appealed, by either the petitioner or the defendant:
- A judgment to grant or deny a limited or full interdiction.
- The appointment or removel of the curator.
- A modification (change) or termination of the interdiction.
An appeal must be filed within 30 days from the date of the judgment, or the right to appeal will be lost. The court of appeal will then review the transcript of the interdiction hearing, may hear new evidence, or may personally question the interdict. The court of appeal can agree with and uphold the lower court's decision, or can disagree with and overturn it.
Even if an interdict does not appeal the judgment of interdiction, he can still challenge his interdicted status later. This can be done by filing a petition for revocation of the interdiction. The interdiction has the right to sue for revocation of the interdiction in his own name. In a revocation hearing, the court will decide if the conditions that proved the need for interdiction still exist or not, and whether the interdict is now capable of exercising his own rights and making his own decisions. The interdict can't legally do that until the court issues a revocation judgment.
What is the responsibility of the curator and undercurator for the acts of the interdict?
They are not responsible, just because of their positions, for the interdict's torts (wrongful acts that harm others). However, they may be responsible for damages caused by their own acts or omissions (failures to act). For example, if a curator negligently supervises an interdict in his charge and, as a result, the interdict hurts himself or others, the curator may be personally responsible for resulting damages.