In Louisiana, a person becomes an adult at 18 and is legally considered an adult regardless of the person's mental or physical abilities. And, an adult is presumed to be competent unless a court has declared that person incompetent to handle his/her own affairs. Now, when a person has a diagnosis, that does not necessarily mean he/she is not competent to sign a power of attorney or will, etc., although many persons may not have the competency to do so. Sometimes, a person becomes incompetent from an illness or an injury. Nevertheless, parents lose the authority to legally act on behalf of their child, when the child becomes 18.
Still, many people may continue to speak for a disabled child out of pure kindness to the parent (for example, by a pharmacist or doctor who shares medical information with you, or the banker who lets you sign your child's name). However, as to medical, legal, and government benefit matters, it often becomes necessary that the parent become vested with the legal authority to act as to the child's assets, living arrangements, and healthcare.
Where 1) a parent, 2) a legal guardian, or 3) the person who would be a legal guardian of the child, if the parents were deceased, needs to obtain that legal authority, and the child cannot sign a Power of Attorney, then, the parent or guardian may proceed with a "Continuing Tutorship." A “Continuing” tutorship is a special form of tutorship available for special needs children, most often, who are between the ages of 15 and 18, and, who possess less than 2/3 of the average mental ability of a same-aged peer.
The Continuing Tutorship requires:
- A Petition,
- Supporting medical evidence by the child's physician by an Affidavit,
- The affidavit of the coroner stating that the minor qualifies for continuing tutorship, and
- The Oath of the prospective Tutor.
If the court agrees with the prospective Tutor/Guardian's request, then, the court provides an Order and Letters of Continuing Tutorship. No hearing or court appearance is required, and the proceeding can be handled within a couple of weeks and at minimal costs.
Now, under La CC Art. 355 and 356, a continuing tutorship may also proceed for a child that has attained the age of 18, but in that instance, the proceeding requires that the 18+ year old have a court appointed attorney that files a note of evidence into the record, and a hearing is also required. Thus, the timeline is a bit longer, and the fees and costs a bit higher.
If you need to proceed with a continuing tutorship for a child or loved one (and you are, or would be the legal guardian), our office routinely handles continuing tutorships, and we would be honored to help your family with the process to make it as seamless as possible.