In Guardianship, Special Needs Planning

Before you can understand a continuing tutorship and how it differs from an interdiction, you have to know what an interdiction is and you have to understand what a tutorship is.  A tutor is the person legally responsible for a minor (someone under 18 in Louisiana). A minor’s parents are his tutors while they are married, but if they are divorced or one or both are deceased, it may be necessary to appoint someone to be legally responsible for the minor since the minor lacks capacity to make his own decisions.  The process for appointing a tutor is called a tutorship.  In most states, this process is called a guardianship.  When the minor reaches the age of 18, the tutorship ends since he now has the legal capacity to make his own decisions.  An interdiction is much like a tutorship except it is the legal process for appointing someone to make decisions for a major (someone 18 or older in Louisiana) who does not have the capacity to make his own decisions. 

 

That brings us to a continuing tutorship. It is a hybrid between a tutorship and an interdiction.  A continuing tutorship is the process for appointing a tutor for someone over the age of 15.  However, unlike a regular tutorship, the tutorship does not end when the person reaches the age of 18.  The continuing tutorship is only available for those over the age of 15 and only in the instance where he or she has less than two-thirds of the average mental ability of a person of the same age with normal intelligence. This means the person’s IQ must be less than 67.  The continuing tutorship is not available for someone who lacks the ability to care for themselves for other reasons – for instance because they have severe physical disabilities unaccompanied by the requisite mental deficiencies or because of mental illness.

 

Like the tutorship of a minor and a full interdiction, the person under a continuing tutorship loses most of his rights and the person appointed as the tutor is responsible for the person just as if he were a minor.  For instance, the law limits the ability of someone under a continuing tutorship to enter into contracts.  They also cannot marry unless they obtain the permission of the tutor.  The law does not address whether they lose the right to vote.  They do, however, lose their ability to appear in court on their own behalf so they cannot be sued and they cannot sue someone else. Their tutor must act for them with regard to court proceedings. 

 

The law specifically grants the right to the tutor to make medical decisions for someone under a continuing tutorship; thus, the individual loses the right to make their own medical decisions just as in an interdiction. 

 

As you can see, like an interdiction, a continuing tutorship can be a costly and time consuming process.  Further, it can only be used in the limited circumstance where a person has less than two-thirds of the average mental capacity of a non-impaired person. However, in the limited circumstance where a continuing tutorship is available, it is a viable alternative to an interdiction and will provide substantially the same result.   

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