For those of you who follow my blogs and monthly articles, you know that last year I wrote a three-part series on the civil death penalty, or interdiction as it is known in Louisiana. Those articles were written in conjunction with a seminar I presented at, detailing the use of special needs trusts for the disabled. In addition to the use of special needs trusts for that segment of the population, interdiction is often required to appoint a curator (known as a guardian in other states) to make financial decisions for the person who is disabled.
In addition to using interdiction law (known as guardianship or conservatorship in other states) for special needs planning, it is often used for those elderly who have lost capacity to make their own financial or health care decisions. In my career as an elder law attorney, I have been involved in numerous interdiction lawsuits. I often write powers of attorney to circumvent the interdiction process by having the agent named in the power of attorney also named as the curator if the principal is ever interdicted.
Tom Benson Interdiction Lawsuit
Little did I know when I wrote the series of articles about interdiction, that Louisiana’s richest man would be in the middle of a hotly contested interdiction lawsuit filed against him. As most of you are probably aware, Tom Benson, the owner of the Saints and the Pelicans, has been sued by his daughter, Renee Benson, and his grandchildren, Ryan and Rita Leblanc, alleging that he lacks the capacity to make financial decisions for himself. They ask for someone else to be appointed to make those decisions.
As I wrote previously, a judgment of interdiction is akin to the civil death penalty because it strips the person against whom the judgment is granted (known as the interdict) of all of their rights. A judgment of interdiction can be full or limited and the court is supposed to impose the least restrictive means as possible to make sure the interdict is protected.
As in most lawsuits, facts become extremely important in determining whether a person should be interdicted. Medical records must be secured and pored over, experts must be hired and witnesses must be interviewed to determine whether the proposed interdict has really lost his or her ability to make their own decisions. Since a court is very reluctant to strip someone of their civil rights, the judge has to be extremely careful in reviewing the evidence.
As in most cases dealing with interdiction where dementia is alleged to be the cause of the person’s inability to care for themselves, a geriatric psychiatrist is often hired to examine the person and give an opinion on the proposed interdict’s ability to make decisions about their finances or their healthcare. In Benson’s case, his family has asked that such an expert be examined to examine him.
While I have no idea whether the civil death penalty should be imposed on Tom Benson at this time, this is an issue that arises every day for ordinary people across Louisiana. Often they wait too long to do their planning, then lose the capacity to do so and have to be interdicted. We are all aware of the Tom Benson case because of his wealth and fame, but without proper planning, the same thing could also happen to you.