An interdiction is a Louisiana court proceeding that removes an adult’s, or a minor who has been emancipated, legal authority to make decisions, in whole or in part, and places that authority with a court-appointed curator. It is available when an infirmity leaves a person unable to consistently make reasoned decisions about his person or his property, or unable to communicate those decisions, and when nothing less restrictive will protect him. Most families in Metairie and Jefferson Parish reach the question after a diagnosis, a hospitalization, or an unexpected financial loss. Before you file, a Metairie interdiction attorney can tell you whether the facts support the petition and which form of interdiction fits.
Full Interdiction and Limited Interdiction Are Two Different Orders
Louisiana recognizes two forms of interdiction, and the difference decides how much authority a person keeps. A court may order full interdiction of an adult, or a minor who has been emancipated, who, due to an infirmity, cannot consistently make reasoned decisions about his person and his property, or communicate those decisions, and whose interests cannot be protected by less restrictive means. Limited interdiction applies the same standard to only part of a person’s life.
Two situations show how the two orders diverge:
- Full interdiction. A parent with advanced dementia can no longer manage medical care, housing, or money. The curator takes responsibility for both.
- Limited interdiction. A parent still chooses her doctors and where she lives but can no longer track her accounts. The court removes the financial capacity and leaves the rest of her life in her own hands.
The narrower order is the default the law reaches for first. A court must confer on the curator of a limited interdict only the powers required to protect that person’s interests, and the judgment must state that the limited interdict keeps every other capacity. The statutory standard for full interdiction makes the broader order unavailable whenever less restrictive means would work.
What the Petitioner Has to Prove
Any person may petition for the interdiction of an adult, and the petition must be verified. The burden then falls on the petitioner, who must prove the case by clear and convincing evidence. That is a higher standard than the more probable than not test used in most civil cases.
The petition itself must do work that surprises many families. It must describe with particularity what less restrictive means the petitioner considered or put in place, and why anything short of interdiction would be insufficient.
The court may appoint an examiner with training or experience in the type of infirmity alleged, and may compel the defendant to submit to that examination. A court-ordered medical examination is a tool available to the judge, not an automatic step in every case. When an examiner is appointed, the report is due to the court, all counsel of record, and any unrepresented parties not less than seven days before the hearing.
The person facing interdiction keeps real rights throughout. He may be present, testify, present evidence, and cross-examine witnesses, and the court cannot hold the hearing in his absence without good cause. If he cannot get to the courthouse, the judge may come to him. If he has no attorney, the court appoints one, who must visit him in person unless excused for good cause.
There is also a consequence for a petition that should never have been filed. If the petition is denied, the petitioner can be liable for the resulting harm, but only in a specific circumstance. Liability can occur when the petitioner knew or should have known when filing that a key claim about the person’s ability to make or communicate reasoned decisions was false. An honest case that simply does not succeed does not create that liability. In families already in conflict over a parent’s care, that provision deserves attention.
Where the Case Is Filed and Who Has to Be Told
Venue is the parish where the defendant is domiciled, meaning the place of his habitual residence. If he has no Louisiana domicile, venue is where he resides, and failing that, where he is physically present. For someone domiciled in Metairie that means Jefferson Parish, and for someone domiciled in New Orleans, Orleans Parish.
Service on the person facing interdiction must be personal, and failure to serve him that way prevents the court from granting the relief requested. Within three days of filing, the petitioner must mail a copy of the petition by certified mail, return receipt requested, to the last known address of every other person named in it, which by statute includes the spouse and the adult children. The order setting the hearing goes to those same people by first-class mail at least ten days ahead. These proceedings are heard summarily and by preference, so they move faster than ordinary suits.
What Changes the Day the Judgment Is Signed
A full interdict lacks capacity to make a juridical act, which in plain terms is a lawful expression of will meant to have legal consequences, such as signing a contract. A limited interdict lacks capacity only as to the property or personal care the judgment places under the curator’s authority. A full interdict also cannot make or revoke a donation during life or a disposition effective at death, so he can no longer sign or change a testament.
Two timing rules catch families off guard:
- The judgment reaches backward. A judgment of interdiction has effect retroactive to the date the petition for interdiction was filed, not the date the judge signs it.
- Earlier acts stand on their own. Interdiction does not affect the validity of a juridical act the person made before interdiction took effect. Interdiction by itself does not undo it.
The court appoints the curator to represent the interdict and care for his person or affairs, and in most cases an undercurator, whose job is oversight. The undercurator has free access to the interdict and his records, reviews the accounts and reports the curator files, and must notify the court if the curator falls short. The order is not permanent either. A court may modify or terminate it for good cause, and interdiction ends on the death of the interdict or by judgment of the court.
When Harm Is Imminent, the Court Can Act Before Trial
While a petition is pending, a court may order a temporary or preliminary interdiction where there is a substantial likelihood that grounds for interdiction exist and substantial harm to the person’s health, safety, or property is imminent. A temporary interdiction granted without notice terminates ten days after signing, and may be extended once by up to ten days only on the defendant’s motion or for extraordinary reasons shown at a contradictory hearing. A preliminary interdiction, granted only after an adversarial hearing, terminates thirty days after signing unless extended for good cause for up to thirty more.
An ex parte request must carry a physician or psychologist affidavit on the grounds, a verified showing of immediate and irreparable harm, and an affidavit describing the efforts made to give notice. The court appoints an attorney for the defendant in every one of these orders.
Planning That Keeps a Family Out of Court
Because a court must weigh less restrictive means, documents signed while a person still has capacity often prevent a petition from ever being filed. A power of attorney, which Louisiana law calls a mandate, names the person who will handle your finances, and it survives your later incapacity unless the document says otherwise.
A medical power of attorney does the same for health care decisions. An advance directive, which the statute calls a declaration, states what you want done about life-sustaining procedures if you are ever in a terminal and irreversible condition. A trust can place property under management without any court order. Louisiana’s elderly affairs office publishes a plain-language guide to the interdiction process that walks through those alternatives as well.
The choice is rarely between interdiction and nothing. It is between planning now and litigating later.
Talk With Our Metairie Estate Planning Firm
Whether you are weighing a petition for a parent or planning so your family never needs one, the answer starts with the facts. Mr. Buhrer has practiced law in Louisiana for more than 35 years and family law judges in Jefferson, St. Tammany, and Orleans Parishes have appointed him as a Special Master in complex cases. Additionally, he holds a Master of Business Administration from Tulane University.
Our office is in Metairie, near Lakeside Mall, and we serve families throughout greater New Orleans. To arrange an initial consultation, contact the Buhrer Law Firm to speak with a friendly staff member.