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 that person.

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 was false.

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.

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  =======================
                      AND DISCLAIMER
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
    ph 225-292-0099
    toll-free 1-888-292-0116

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