In Estate Planning Awareness, General Estate Planning
Probate literally means “to prove,” and proving and distributing property according to a last will and testament has become known as the probate process. This procedure takes place in the probate court. Of course, this procedure takes place after someone’s death because that is when the will becomes effective. However, there is another procedure which I call “living probate” and which can be more lengthy and costly than death probate. If you become incapacitated and are unable to take care of yourself or your financial affairs and you have not appointed an agent through a power of attorney to take care of those things for you, an interdiction proceeding might be filed against you in the probate court. The purpose of this process is to have the judge declare that you are incompetent and to appoint someone to handle your affairs for you. I call the procedure “living probate.” While the proper legal term for the procedure in Louisiana is an “interdiction,” living probate is an apt description since it is filed in the probate court and it is during your lifetime. And, as mentioned, living probate can be very burdensome to you and your family. In other states, this procedure is often called a guardianship or conservatorship, but in Louisiana it is known as interdiction. The person appointed to care for the interdicted person is known as the curator and this is equivalent to a guardian or conservator in other states. In recent weeks, it appears that Tom Benson’s daughter, Renee Benson and her children, Ryan and Rita Leblanc, have filed an interdiction proceeding against him alleging that he is not competent to take care of his affairs. These allegations appear to stem from his desire to replace his current wife as the recipient of his riches instead of them. While we may read about their saga in the newspaper and think these things only happen to the rich and famous, interdiction as a result of dementia is all too common in Louisiana and in my law practice. I am currently involved in two interdiction proceedings, one of which deals with an elderly lady that may suffer from dementia. In the past, I have also been involved in several other lawsuits of this nature. Unfortunately, it is usually the lawyers who win in a contested interdiction as it may take many years and a lot of attorneys’ fees before these cases are concluded. Several years ago, I was involved in an interdiction proceeding that lasted two years. During the interim, the judge appointed two CPA’s to manage an elderly lady’s money. I would like to say that after two years the interdiction proceeding was resolved. Unfortunately, it was not. Instead, the proposed interdict passed away and the parties fought for several more years about who was to inherit what was left. To initiate an interdiction proceeding, one of your family members or another interested person must file a lawsuit alleging the facts to show you are unable to take care of your person or your finances. In the Benson case, the Baton Rouge Advocate reports there are allegations in the interdiction proceeding that Mr. Benson is unable to state the current president’s name and his brief periods of lucidity quickly turn into confusion. These are the types of allegations that are common in this type of lawsuit. To understand why an interdiction proceeding can be so costly and time consuming, you must understand a little more about the process the lawsuit must follow. To file an interdiction proceeding, it is necessary for the person instituting the lawsuit to hire an attorney to handle the matter for them. The lawsuit must then be served on you as the defendant. You must be given an opportunity to appear in court and show why you should not be interdicted. If you fail to appear for the court date, the judge must then appoint another attorney to look after your interests and make sure you really need to be interdicted. That attorney will also have to be paid. The judge will usually appoint a medical expert to prepare a report regarding your condition which may also entail additional costs. If possible, you must be brought to the courtroom for the judge to determine whether interdiction is necessary. If he does find it necessary, then a judgment of interdiction will be granted. In a high profile case like that of Tom Benson, the case is likely to be in court for many years as the attorneys interview witnesses and hire experts to testify for them. But even when the lawsuit is concluded, if a judgment of interdiction is granted, this isn’t the end of the living probate nightmare. Once the judgment of interdiction is granted, the judge must appoint a curator to look after you and/or your financial affairs and an undercurator to make sure the curator attends to his job properly. The curator must post either a surety bond or submit his property to a legal mortgage to be qualified as the curator. He will then be issued “letters of curatorship” which will entitle him to act as your legal representative. The court may appoint separate curators for the person and the financial affairs. At least once a year, the curator has to file an accounting with the court detailing the expenditures he has made. This may also involve accounting fees and additional court costs. The curatorship will continue until your death or until you petition the court to remove it and prove that it is no longer necessary. As you can see, this procedure can be both time-consuming and costly. I think it is a safe bet in the Benson case that it will be one or both.
Showing 2 comments
  • Steve

    Is The Trust Irrevocable or Isn’t It? A/K/A, the Saga of …

  • Gierach Law Firm

    Things can get pretty complicated in probate law and so it is best for the person instituting the lawsuit to hire an attorney to handle the matter for them.

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