Guardianship/Interdiction

When someone is unable to make their own decisions or handle their own affairs, it may be necessary for a court to appoint someone to do those things for them. In most states, that process is called a guardianship. In Louisiana, it is called an interdiction. Legacy Estate & Elder Law is called on often to help families in this situation and we know it can be a very difficult time where expert advice and understanding is required.

A guardianship/interdiction is a lawsuit where someone with an interest (usually a spouse or family member) in the affairs of a person who has lost capacity hires an attorney to file a lawsuit against the person who has lost capacity. This interdiction lawsuit asks the judge to appoint a guardian (called a curator in Louisiana) to manage the health care, financial decisions or both the health care and financial decisions of that person. Once a curator is appointed the person who lacks capacity loses almost all of their civil rights. Because of this, an interdiction is sometimes called the “civil death penalty.”

Like other lawsuits, the interdiction petition is served on the one lacking capacity by the sheriff’s office and that person is given a specific amount of time to file an answer to the interdiction petition. The interdiction process has many safeguards built in so the judge does not take away the interdict’s rights unless absolutely necessary. If the proposed interdict files an answer to the petition for interdiction, a trial may be necessary for both sides to present evidence about whether the person still has capacity. Interdiction lawsuits are usually very time consuming and costly as they involve expert witnesses and medical professionals to testify about the proposed interdict’s capacity.

If the proposed interdict does not file an answer to the interdiction petition, the judge then has to appoint an attorney to represent that person. This is another safeguard that is built into the interdiction so that the person has a representative even if they don’t hire one themselves. The judge will also appoint a medical examiner to provide information about the capacity of the person. Finally, when all of these things are completed, a hearing will occur where the judge will determine whether the person lacks the ability to take care of his or her person or property and, if so, the judge will sign a judgment of interdiction and will appoint someone as the curator. If the judge decides the person can’t take care of his or person or property, the judge will grant a limited interdiction and if the judge decides the person can’t take care of both his or her person and property, the judge will grant a full interdiction.

Once an interdiction is granted and a curator appointed, the curator may have to file additional documents with the court to sell the interdict’s property and will also be required to file an annual accounting with the court letting the judge know how the interdict’s money was spent during the year.

Whether you need to interdict someone or someone has filed an interdiction lawsuit against you and you want to contest it, our attorneys have many years of experience dealing with interdiction issues.