last update 2-01-04
INTERDICTION is the term used for the plan of having a Court declare a person
is not competent to take care of his own affairs and appoints a Curator for
A judgment declaring a person fully interdicted is, in some ways, the most
far-reaching legal judgment short of the death penalty. Indeed, it is often
referred to as "civil death". A full interdict loses control of virtually
every aspect of his life, including decisions about place of residence,
medical care, financial affairs and the authority to donate property during
his lifetime or in a will at his death. He also loses control over family
law matters, such as child custody and marriage. It is by no means a decision
to be made lightly, nor should a judgment of interdiction be rendered when less
severe means would suffice.
La Civil Code Art 389 provides the basic requirement for a full interdiction by
stating that a person can be judged an interdict "who due to an infirmity,
is unable consistently to make reasoned decisions regarding the care of his
person and property, or to communicate those decisions."
When a person is appointed curator for an interdicted person, he is obligated
to take care of the person or his property and "shall exercise reasonable
care, diligence and prudence and shall act in the best interest of the
interdict." Thus, the person is a fiduciary with clear standards of putting
the interest of the interdict above his own.
In addition to a curator, there will also be an Under-Curator appointed.
Interdiction does not affect the legal acts of the interdicted person that
he made prior to interdiction. However, once interdicted, the person loses
the right to make legal acts.
Once the court rules a person to be interdicted, that ruling is retroactive
to the date of filing of the petition for interdiction. Obviously, the court
can modify or terminate a judgment of interdiction for good cause. Also,
when the person dies, the interdiction terminates and the authority of the
curator and undercurator also terminate.
If you are considering having someone interdicted, be careful. If you fail
in your effort, you could be held liable for resulting damages caused to the
defendant if the petitioner knew or should have known at the time of filing
that any material factual allegation regarding the ability of the person
to consistently make reasoned decisions or to communicate those decisions
La Code of Civil Procedure Art 4541 to 4569 provide the instructions about
the "how to" rules for an interdiction. One of the first and foremost rules
is that the person to be interdicted MUST be personally served with the
petition for interdiction. For a person that is clearly deficient in his
abilities, this may seem to be a ridiculous procedure. However, it is a
basic requirement and cannot be avoided. Its obvious purpose is to provide
people with normal abilities proper notice of a proceeding before someone
else takes legal steps against them.
The requirements for the basic petition are set out in La CCP Art 4541 and
provide that any person can petition to have someone interdicted but it must
also state the reasons for the request, the names and addresses of all adult
children, and a number of other items about the person or his condition.
The proper parish to bring the action is the domicile of the person or where
he resides. If he is physically present in the state without a domicile or
residence, then the parish in which he is located.
It is extremely important that the person to be interdicted be personally
served with the petition for interdiction. Although this may not make sense
in all cases, it is a protection for all people to ensure that someone does
not take advantage of the system.
If the person served does not make a timely appearance in court, individually
or through his own attorney, then the court is required to appoint an
attorney for him. The attorney is required to meet with the proposed
interdict and to discuss the facts of the case with him. Failure to meet with
the person will not affect the validity of the process but could expose the
attorney to a claim for sanctions.
The court may appoint an examiner to examine the proposed interdict. This
person would normally be a physician and may even be the person's personal
physician. The examiner is to provide a report to the court and to the
other interested parties no more than 7 days prior to the hearing. The
report is to state the condition of the person and the appropriateness of
The interdiction hearing shall be heard by preference over other matters
on the Court's docket. The proposed interdict has a right to be present
and to put on evidence and testimony, as is necessary. If the person cannot
attend court, the judge can have the hearing at the place of the proposed
interdict and the hearing can be closed for good cause.
The person bringing the suit for interdiction has the burden of proof in the
matter by proving his case by clear and convincing evidence. This is
greater than the standard of a preponderance of evidence, which is more
likely than not or more than a 50% chance. The standard for the interdiction
is less than that required for a criminal trial but still must show clearly
that the person needs to be interdicted.
The person to be named curator is to be chosen according to the following
list of persons and in this order.
1. A person named by the proposed interdict at an earlier time.
2. The spouse of the person
3. An adult child of the person
4. A parent of the person
5. A person with whom the person resided for more than 6 months
6. Any other person
The Court may appoint separate curators for the person and for his property.
The person named as curator will also need to file security in the form of
a insurance bond or a judicial bond filed in the mortgage records. This is,
in essence, a mortgage on all the property in the parish against the person
named as curator. Thus, he must be sure that he wants the job of curator
before undertaking the task.
This page is intended to be an overview of the highlights of the interdiction
law but it does not necessarily provide all the details. You should study
the requirements with your attorney before undertaking an interdition.
======================== WARNING =======================
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed. Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a
attorney to discuss the specific facts of your case
and the law of your state.
If you live in Louisiana and want to talk about your situation, please
call me at:
Marvin E. Owen
3036 Brakley Drive
Baton Rouge, La 70816
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