A Guide to Interdiction
Interdiction is a legal process in which a court determines, based on the testimony and other evidence presented, whether a person is incapable of making consistent and rational decisions about their property and their person, or of communicating these decisions, and whose interests cannot be protected through less restrictive means. In such cases, the court appoints someone to make these decisions on behalf of the person - curator and undercurator.
Reasons for an Interdiction
Interdictions can be filed on behalf of others due to old age and other health issues that may prevent someone from making consistent decisions for themselves. Some examples of these health issues are dementia, Alzheimer's disease, and other disorders that impact the brain. Other reasons for filing for interdiction may be due to mental health issues, such as schizophrenia, psychosis, or they may be mentally and physically disabled and unable to communicate.
Temporary and Preliminary Interdiction
If you believe the person you are filing an interdiction petition is in serious harm, you may file a motion for a temporary interdiction. You will be able to file a motion for temporary interdiction with the interdiction petition or after you have filed the interdiction petition. You will need to provide evidence proving a motion for temporary interdiction is needed. Once you have filed a motion for temporary interdiction, and it has been approved, the next step will be the preliminary interdiction hearing.
What You Need to Know
Full interdiction occurs when a court determines that the individual cannot consistently make decisions about their person and their property.
Limited interdiction occurs when a court determines that the individual is incapable of consistently making decisions about their person, their property, or some part of either. For example, someone may be able to make sound decisions about his medical care or where they will live, but not be able to manage their finances.
There may be several possible alternatives to getting an interdiction. This may include getting a:
Power Of Attorney
Power Of Attorney
A Power of Attorney document may also be called a Letter of Mandate. The document allows you to appoint someone else to act as your legal representative. The appointed representatives may take action on your behalf. This may be necessary for legal, financial, or other matters. Should you change your mind about who you appointed, you may take back your representation and appoint someone else. If you chose to do this, you will need to inform everyone who worked with your original representative.
For more information please visit the Disability Rights Louisiana webpage.
An Advance Directive allows someone to make decisions for you in the event of incapacity. The written document provides instructions for decisions related to medical treatments and care. It may also provide for financial or other matters. It allows a trusted individual to make decisions on their behalf in the event of incapacity.
A living will outline a person's wishes for medical care in the event of incapacity. When a person cannot make decisions it allows another trusted person to do so.
A judicial commitment is when a court requires mental health treatment and placement for a limited period of time for an individual unwilling to accept such care for himself, as long as the individual poses a danger to himself, others, or is gravely ill. Unlike interdiction, judicial commitment does not have anything to do with a person’s competency or capacity to make decisions.
What is a curator?
A curator is a person who serves as a court-appointed guardian for an interdicted individual or his or her affairs. Decisions are made by the curator on behalf of the interdicted person. Curators are typically someone who maintains a close relationship with the interdicted person such as a family member or friend.
What are the duties and responsibilities of a curator?
A curator is given all (full) or some (limited) power to make decisions for the interdicted person. Curators need to exercise reasonable care, diligence, and prudence when making these decisions and must behave in the interdicted person's best interests.
A curator must also file a financial and personal annual report with the court. Annual financial reports provide a list of the interdicted person's assets, the expenses made on their behalf by the curator, and what property may have been purchased or sold. Annual personal reports provide details about the interdicted individual's physical, medical, and psychological well-being.
What is the curator's liability?
Curators are not personally responsible for the interdicted person's actions or obligations. It is possible for the curator to be held liable for damages caused by their own acts, omissions, or failure concerning the interdicted person.
What kind of decisions do curators make?
These decisions could include medical, placement, legal, and financial decisions. Medical decisions would include giving access to medical records and consenting to treatment. Whereas placement decisions would include making decisions on where the person will live. A legal decision a curator would make would include filing a lawsuit. Financial decisions would include signing checks, paying bills, and investing funds. Some decisions may need court approval.
What is an undercurator?
To make sure the curator complies with the rules, the court appoints an undercurator. The undercurator's job is to make sure the curator is acting in the best interest of the indicted person.
What are the duties and responsibilities of an undercurator?
Undercurators have full access to the interdicted person's records, accounts, and reports. The role of the undercurator watches over the curator and their activities. The undercurator may report any inappropriate behavior or lack of activity. The undercurator may also help the curator with their duties when necessary.
In a temporary interdiction, the court may grant an emergency order for interdiction. This may happen without notice. The court must find immediate and irreparable injury, loss or damage in this instance. There must also be a pending petition to make a request for temporary interdiction. The court schedules a preliminary interdiction 10 days after the temporary interdiction.
In a request for temporary interdiction you must include:
An affidavit by a licensed doctor or psychologist that certifies the facts in the claim.
A verified petition or affidavit that confirms the facts supporting the claim. There must be immediate and irreparable injury, loss or damage that will result. This might occur before a hearing for an interdiction asked for in a petition can occur,
An affidavit by the petitioner or their attorney that states efforts to give notice to the person being interdicted, or reasons supporting a claim that notice should not be required.
Preliminary interdiction is similar to a temporary interdiction but requires a hearing during which the defendant can defend themselves. You do not need to file a motion for a preliminary hearing.
To have a preliminary interdiction:
A petition for an interdiction must be filed and a hearing must take place within twenty days of the order that schedules it.
All orders, pleadings, and evidence must be personally served to the defendant and the defendant's attorney no later than 72 hours before the preliminary interdiction hearing.
A judgment of preliminary interdiction ends 30 days after being signed unless it is extended by the court.
Anyone who has a significant relationship with the interdicted person may file a petition. However, filing for interdiction is a long and expensive process and it is not easy to be granted an interdiction by a judge. Some factors to keep in mind before filing for interdiction are the cost of an attorney and if there is enough evidence to prove to the court that interdiction is necessary.
In this PDF you will be able to find the Guidelines and Forms for an interdiction in Louisiana.
How to File an Interdiction Petition
Anyone can file a petition for an interdiction. However, if the person filing for an interdiction does not have a close relationship with the defendant then the court will decide if the person filing for the interdiction has good motive.
You do not need evidence to file an interdiction petition, but you will need to provide evidence to the judge at the hearing. The highest level of proof is required.
Examples of evidence that you will need to provide are:
- Witness statement that supports the claims.
- These witnesses can include physicians, psychiatrists, and anyone else who has witnessed the defendant having issues with making consistent decisions.
- Medical records that support the claims.
You will also need to provide affidavits as well when you file. The affidavits you will need are:
- Affidavit by a Licensed Physician or Psychologist that supports the claims.
- Affidavit by Mover or Attorney that states the attorney tried to give notice or reasons supporting the claim as to why notice should not be required.
- Verification of Affidavit that supports the claims that immediate injury, loss, or damage will result to the person or property before the hearing.
You will need to file the petition in a courthouse where the defendant currently lives.
The petition must include:
- The name, parish, current address, and age of the defendant.
- The petitioner's relationship to the defendant.
- Where the petitioner believes the defendant should live.
- Why an interdiction is necessary.
- Provide an explanation of the defendant's decline in mental health.
- Explain why a full or limited interdiction is necessary or not.
- The name and addresses of spouse and adult children.
- If there are no children then the names and addresses of parents and siblings.
- The defendant's legal representative and the representative's address.
- The name of the person the defendant chose to be the curator and their address, if possible.
- The name, parish, address, age, and education level of the curator the petitioner suggests. The petitioner should also include why the suggested curator would be a good fit.
- The name of the suggested undercurator.
You may file a motion for a temporary interdiction if you believe the defendant's health, safety, or property to be interdicted is in immediate danger. To receive a temporary interdiction, you must file a motion for temporary interdiction when you file the petition or after you have filed the petition. You will need to provide evidence with your motion of temporary interdiction such as a witness statement from a person who can support the claims being made.
Once the motion has been filed, it will be in effect for 10 days. The defendant will need to be personally served the motion 72 hours before the preliminary interdiction hearing. The date of preliminary interdiction hearing will take place within 10 days from the date the motion was signed. If a temporary interdiction is granted, it will be in effect for 30 days from the date the motion was signed.
The defendant must be personally served the petition. The defendant or the defendant's attorney must show up in court to address the claims, normally to deny the claims. If the defendant cannot afford an attorney the court will select one. Failure to personally serve the petition prevents the court from giving the relief requested in the petition.
Both the petitioner and the defendant must attend the hearing. The petitioner must present strong evidence to the court that proves the defendant is consistently unable to make reasonable decisions regarding themselves and their property. Both the defendant and the petitioner may have witnesses testify on their behalf. After all of the evidence has been presented, the judge will decide whether or not to grant an interdiction.
If the defendant or the plaintiff does not agree with the outcome, they may file an appeal within 30 days of the hearing.
Other Issues to Consider
Other Issues to Consider
Yes, either party may appeal the judge's decision if they do not agree with the decisions about the interdiction, who was appointed the curator and undercurator, and the type of interdiction granted.
Yes, it is possible to file a motion to the court to change or end the interdiction. You must ask for a court order. The court considers several factors to change the original judgment. The court looks at the individual's mental health. They may look at the severity of the interdiction. The court also considers the individual's current circumstances. There must be proof that the terms of the original judgment must get changed to revoke or modify the terms of the interdiction.
The cost of an interdiction depends on the circumstances of each case and can vary greatly depending on the physical and mental condition of the person, the person's family situation, and the amount of property the person has. It is very important that you discuss the total cost of the interdiction with your attorney before you proceed. It is not unreasonable to expect periodic updates from your attorney on the progress of the case.
An individual is not given the power to place another person in a nursing home or living facility by filing a Petition for Interdiction. A curator may change the interdicted person's placement if the interdicted person is unable to care for themselves and it is the best option. Courts and curators cannot send a person to a mental health treatment facility unless they follow the law's procedures.
The judge will appoint a curator who is most qualified to fulfill the duties. A curator must be at least 18 years of age to be appointed.
These people are allowed to be curators, and are usually picked by the court in the following order:
- A person designated by the defendant in writing and signed by them while they had the ability to consistently communicate a reasoned response.
- The spouse of the defendant.
- An adult child of the defendant.
- A parent of the defendant.
- An individual with whom the defendant has resided for more than six months prior to the filing of the interdiction petition
- Any other person
Separate curators may be appointed for the interdict's person and affairs by the court. At any point, the court may remove the curator and appoint someone else who is qualified