A Guide to Interdiction
Authored By: Louisiana Elder Law Task Force
FAQs About Interdiction
What is interdiction? +
Interdiction is a legal process where a court is asked to determine, from testimony and other evidence presented, whether a person is unable to consistently make reasoned decisions regarding their person and/or their property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. If such a finding is made, the court appoints someone to make these decisions for the person.
Full interdiction and limited interdiction
A full interdiction occurs when a court determines that the individual is incapable of consistently making decisions about their person and their property.
A limited interdiction occurs when a court determines that the individual is incapable of consistently making decisions about their person or their property, or some part of either. For example, a person may be making sound decisions about his medical care or where they will live, but can not handle their money.
What is a curator? What does a curator do? +
A curator is the person appointed by the court to care for the interdicted person or their affairs, make decisions for the interdicted person, or to act in the place of the interdicted person.
Duties and responsibilities of a curator
The curator is given authority to make either some (limited) or all (full) decisions for the interdicted person. In making these decisions the curator must exercise reasonable care, diligence, and prudence, and must act in the best interest of the interdicted person. In addition, a curator must file an annual report with the court. A financial annual report lists the assets of the interdicted person and expenditures made by the curator on behalf of the interdicted person or what property may have been bought or sold. A personal annual report provides information on how the interdicted person is doing physically, medically and/or mentally.
What kind of decisions does the curator make?
These decisions could include medical decisions, such as giving access to medical records and consenting to treatment; placement decisions, such as where the person will live; legal decisions, such as filing a lawsuit on behalf of the interdicted person; and financial decisions, such as signing checks, investing funds and paying bills. Some decisions may require court approval.
What is the curator's liability?
A curator is not personally responsible to a third person for any acts or obligations of the interdicted person just because they are the curator. A curator may be responsible for damages resulting from their own acts, omissions or negligence regarding the interdicted person.
What is an undercurator? What does an undercurator do? +
The undercurator is a person appointed by the court to make sure that the curator is acting in the best interest of the interdicted person and performing the curator's duties.
Duties and responsibilities of an undercurator
The undercurator is given full access to the interdicted person and their medical records and must review all accounts and personal reports filed by the curator. The undercurator has the duty to notify the court if they have reason to believe the curator has failed to perform any duties imposed upon the curator by law. However, should the curator be unable or unwilling to fulfill their duties, the undercurator does not automatically take over for the curator. The undercurator has the responsibility to inform the court of the problem and may request that the court appoint someone else to serve as curator.
Can a curator have an interdicted person placed in a nursing home? +
The mere filing of a Petition for Interdiction does not grant any power to a person to place another person in a nursing home or residential facility. If, after a hearing, the person is found incapable of caring for their person, a change of placement can be made by the curator as long as it is in the best interest of the interdicted person. However, neither the curator nor the court can admit or commit a person to a mental health treatment facility, without following the procedures required under mental health law, and meeting the criteria of that law.
Can an interdiction be revoked or can the terms be changed? +
Yes. If it can be shown that the terms of the original judgment are either excessive or insufficient, or that the ability of the interdicted person to care for their self or their property has changed enough to warrant modification or termination, a motion can be made to the court to review the interdiction, and either make changes or revoke the interdiction.
What are some things that I can do in advance to postpone or avoid being interdicted? +
Power of Attorney, Mandate, Advance Directive, or Living Will
A power of attorney (sometimes called a letter of mandate) or an advance directive gives someone of your choosing the right to make medical, mental health and/or financial decisions for you should you become incapable of doing so yourself. You should consult an attorney to make sure the power of attorney will do what you intend it to do.
A living will can make your wishes known to your family, friends, and physicians about end-of-life choices. Decisions that a person can make known in a living will include a "Do Not Resuscitate" direction. Medical providers give only comfort care to people with "Do Not Resuscitate" orders, and avoid extreme lifesaving measures, which can be painful, traumatic, and unsuccessful.
A Louisiana trust can be created to provide detailed instructions to a trustee to manage your money and/or property for your benefit or for named beneficiaries of your choosing.
Choose a Curator
Choose a person to become your curator should you ever need to be interdicted. Put your choice in writing.
What are some alternatives to interdiction? +
Powers of attorney for health and/or finances in which another person is designated to make decisions for you when you are unable to do so yourself. Depending on the problems that the person is having, a judicial commitment; representative payee program; utilization of community resources, such as home health services, on-call or day programs; or services from local or state agencies may accomplish what is necessary to care for the person and his property in the least restrictive manner.
How much does an interdiction cost? +
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 in the case.
What is the difference between an interdiction and a judicial commitment? +
With an interdiction, another person is appointed to make those decisions that the interdicted person is no longer capable of making regarding his person and property. A person's competency or capacity is not at issue with a judicial commitment. In a judicial commitment, a court is forcing mental health treatment and placement for a limited time on an individual unwilling to access the care for himself, where that individual is either a danger to himself, a danger to others, or gravely disabled.