Helping Someone Make Decisions: An Overview of Legal Status (FAQs)
Authored By: Advocacy Center
FAQs About Legal Competency
What does Louisiana law have to say about people who are unable to take care of themselves? +
"Competency" is a legal term which means the ability of a person to manage their own affairs. In Louisiana, a person 18 or older is considered competent and able to take care of himself and make decisions on his own, unless a court has declared him to be incompetent, or incapable of managing his own affairs. This is called a "presumption of competency."
A person under 18 is considered a minor and is presumed to be incompetent, unless a court has declared him "emancipated." A parent or tutor (legal guardian) has legal decision-making authority over an unemancipated minor.
Because people 18 and older are presumed to be competent, legal authority to act for someone else requires - depending on the situation - consent by the person or a court order.
But do I need that if my 18 year old child is mentally retarded, or my elderly parent is unable to handle his bills? +
The result of the presumption of competency is that a parent loses the legal right to manage his child's affairs once the child becomes an adult at age 18, and an adult's ability to handle their affairs due to illness continues even with illness. Even if a child has a disability and needs the help of his family to survive, the law recognizes him as a competent adult. This is equally true for an elderly person who becomes incapacitated by illness and can no longer adequately care for himself or his property.
How do I get legal authority to act for someone who needs my help? +
In order to get legal authority to act on behalf of another person when the person is not competent to give you the authority, you may ask a state court to give you decision-making authority by an interdiction, limited interdiction, or continuing tutorship.* State law also allows a competent adult to voluntarily give another person authority for certain kinds of decisions, through what is called a procuration or mandate ("power of attorney").
Federal law also allows the Social Security Administration to appoint a representative payee to receive benefits, and manage them, for a beneficiary. A payee may be appointed on request of the beneficiary, or by the Social Security Administration acting on its own, without the beneficiary's consent, if it believes the beneficiary cannot manage the payments on his own. These cause changes in a person's legal status. Guides to these different kinds of legal authority may be found elsewhere on this website.
* Continuing tutorships are much simpler and less expensive than the cost of an interdiction through a trial process. Parents are encouraged to consider filing for a continuing tutorship before their son or daughter is 18 to avoid the expensive, sometimes lengthy, process of an interdiction.
How do I know when a change in legal status is needed? +
There is a need for change in the legal status of an adult when that adult, for whatever reason, is unable to make his own decisions and someone who is capable needs legal authority to make decisions for the person who is incompetent. The point of legally transferring this decision-making authority is to make sure that decisions made for a person who is incompetent are in the best interests of that person. A change in legal status may be needed for someone who is severely mentally retarded, has never had an ability to make decisions, and has reached 18. In that case, a parent would ask to keep decision-making authority. A change in legal status may be needed for a person who was previously able to make his own decisions, but lost that ability due to severe mental illness, brain injury, or a medical condition that has adversely affected mental ability. Sometimes, a person may have a medical condition, perhaps associated with aging, which results in recurring periods of inability to make decisions.
In each case, when a person is determined to be incompetent, someone other than that person must decide such questions as whether recommended medical treatment should be given, whether other kinds of treatment should be given, how any income should be used, where the person should live, or who will give care-taking services.
There may be parents or other family members who are able and willing to make decisions for the person, and there may be no relatives willing to take on the responsibility. In some situations, the person lives in an institution, has no family, and institutional staff make decisions for the person. But relatives and professional caregivers have no legal authority to make decisions for an adult who, regardless of actual capacities, is presumed competent by law.
Is it very easy to get legal authority over another person? +
Because the loss of authority over one's own decisions is such a tremendous loss, legal status laws give protections for those who are believed to be incompetent. Before a person can lose the right to control his own life through interdiction, there must be a court hearing to determine whether the person is, in fact, unable to make decisions. An adult whose competency is in question must be represented by a lawyer at a hearing. If the court finds that the person is incompetent to exercise some or all decision-making authority, then the court must decide who is the appropriate person to handle that for the incompetent person. Similar protections exist for continued tutorship.
If your situation calls for voluntary or court-ordered change in legal status, you should talk with a lawyer. If you decide that representative payment for Social Security benefits is needed for you or someone else, contact the Social Security Administration.