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Many & LoCoco Legal Blog

Wednesday, September 5, 2018

Interdictions

Interdiction is its own area of Louisiana Law, yet one that is not understood by a lot of clients. So this brief article will attempt to explain just what it is and the procedure required to obtain a Judgment of Interdiction. Of course, the Tom Benson matter did bring the world of Interdictions to the forefront of the news media.

WHAT IS THE PURPOSE OF INTERDICTION?

For some members of our society, legal protection may be necessary even after they have entered adulthood.  These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or because of their age, they are prevented from caring for themselves. In other words, although often it is used for the elderly, it is not uncommon to use interdiction for all age groups.

Interdiction requires Court involvement. A person – often a family member, sues the proposed interdiction advising that the person is incapable of taking care of their person, their property, or both. In my practice, clients will usually come to me so sue for Interdiction for a number of reasons, but usually it’s to gain control and access over bills and the proposed Interdicts accounts to assist in paying bills, or to assist and make medical decisions for the person, or because of immediate harm that may occur to the person to get in a position of authority over them.


CAN YOU EXPLAIN IT A LITTLE MORE? WHAT IS THE DIFFERENCE BETWEEN THE INTERDICT AND THE CURATOR?

Interdiction is a legal arrangement that places an individual, known as the interdict, under the supervision of another person, called a curator.  The Court will also appoint an Undercurator, who is an individual who is the watchdog over the Curator and will stand in his/her stead if the Curator can’t perform their duties. There are two main types of interdictions: interdiction over the person and interdiction over the person's property.

A curator is typically a family member, friend, or fiduciary appointed by the court.  An interdict is normally an adult who can no longer make safe and sound decisions about his or her own person or property.  Additionally, a person may be interdicted who is prone to fraud or undue external influence.  It all boils down to protection of the individual.

While interdiction does attempt to maintain the interdicts independence, it should only be considered in appropriate cases, as it may significantly impinge upon rights of the individual. The key legal phrase is that interdiction has to be a means of last resort and that there is no less restrictive means available. 

Appointment of a curator can materially limit the rights and privileges of the interdict in areas such as:

  • Choosing residence
  • Providing informed consent to medical treatment
  • Making end-of-life decisions
  • Making property transactions
  • Obtaining a driver’s license
  • Owning, possessing, or carrying a firearm or other weapon
  • Contracting or filing law suits
  • Marriage
  • Voting

 

A RIGHT TO DUE PROCESS?

The Law of Louisiana makes sure to protect and safeguard the proposed interdict's right to due process. This is done by requirements that he or she is entitled to notice of the filing of the suit and the ability to attend and participate at all legal proceedings related to interdiction.  In addition, the proposed interdict will be represented by counsel at all times. At the hearing, and with the assistance of Court appointed counsel, the proposed interdict may present evidence, and confront and cross-examine all witnesses.

SO WHAT IS INTERDICTION OVER THE PERSON?

Interdiction over the person often relegates the following responsibilities to the appointed curator:

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical treatment
  • Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • Making end-of-life decisions
  • Paying debts and other expenses
  • Maintaining the protected person’s autonomy as much as possible

The curator may be required to report to the court about his or her activities on an annual basis.


AND WHAT ABOUT INTERDICTION OVER THE PERSON’S PROPERTY?

Interdiction over the person's property transfers the following responsibilities to the curator:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets
  • Reporting to the court the estate’s status on a regular basis

As stated above, the Interdiction can be for both person and property and this is known as a Full Interdiction. If it is for one or the other, it is known as a Limited Interdiction.

Many interdictions are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity. 

HOW DOES POWERS OF ATTORNEYS AFFECT INTERDICTIONS?

As seen above, one of the basis for an interdiction is that there is no less restrictive means available. A Power of Attorney can be a less restrictive means. A Power of Attorney is a document whereby a person, while they are still competent, executes a document appointing someone as their agent to assist them with all their daily activities and medical decisions. The person can still act for themselves, but it does allow for someone to assist. So, while a properly executed Power of Attorney may reduce the need for an interdiction, it is not a guarantee that an interdiction is necessary. The person may still do things that put them in harm or subject them to undue influence, which an interdiction proceeding would cut off, as all legal rights are removed from the individual.

One note about Powers of Attorney, often they will state in them that if the person is ever interdicted, they would like the Court to appoint as their Curator the person named as their agent in the Power of Attorney.

WHAT IS THE KEY TO INTERDICTIONS?

To answer this question, I will call upon my twenty-five years of law practice, both representing Curators in their pursuit of Interdiction and being appointed by the Court to represent the proposed Interdict. The key is twofold. First are the facts. The person moving for the Interdiction must, with the assistance of their counsel, clearly and distinctly lay out all the facts in the petition to show why interdiction is appropriate. In other words, what is the proposed interdict doing or not doing that makes interdiction appropriate. The second key is the medical evidence. As I tell all my clients, the attorneys and the parties can all argue and say what they want, but what matters most to the Judge is what does the medical evidence show. Does the doctor believe that interdiction is appropriate and why?

IN CLOSING

As I said at the beginning of this article, it would be brief. I did not even touch on the Court ordered bonds required to be put up by the Curator, Emergency Temporary Interdictions granted upon the filing of a Motion with an Affidavit of the Physician that Harm is imminent, and the costs associated with interdictions. If you have a loved one and are concerned that they may no longer be able to care for their person or their property, call me to set up a time to come in and talk about the situation.

Interdictions are costly, sad, and can be difficult, but when one realizes it is all done for the protection of the individual, it makes the whole process worth the ordeal.

Chip LoCoco

Attorney at Law

(504) 483-2332


 


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The Attorneys of Many & LoCoco assist clients throughout parts of Southern Louisiana, including but not limited to New Orleans, Metairie, Mandeville, Convington, Gretna, Arabi, Marrero, Westwego, Harvey, Chalmette, Kenner, and the Parishes of Orleans, Jefferson, St. Tammany, and St. Bernard, LA.



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