A Brief Introduction to A Louisiana Interdiction (Guardianship).
An interdiction becomes necessary when a loved one has diminished capacity, can no longer consistently make reasoned decisions, and most often, when that person does not have Powers of Attorney in place appointing a legal agent. An interdiction has several procedural steps and is a serious matter. Specifically, a presiding Judge takes the matter of removing someone's capacity to contract, by court Order, with great deference. Thus, the steps in an interdiction proceeding include:
Petition. We file a Petition for Interdiction and we must provide the court with information such as names and addresses of spouse and adult children, or siblings. We also need to be armed with medical evidence permitting us to interdict, whether it be with physicians who are going to testify, or Affidavits. Affidavits by a treating physician are preferred and allow the process to be more streamlined.
Service. The Sheriff's Office must also serve that Petition for Interdiction on the person to be interdicted/the Defendant in the matter. Personal service must occur under La CCP Art. 4543. And, practically speaking, if the person to be interdicted is in a nursing home, or under care, notice should be given to that entity and to others who may contest the action to see what issues might be agreed to in advance of the formal hearing.
Filing a Notice of the Action. We must, concurrently with the Petition and service of process, file a Notice of Pendency of the Action in conveyance and mortgage records in accord with La CCP Art. 4552.
Emergency/Temporary Interdictions. We can file and plead to the court, and the court must find that “immediate and irreparable harm” would occur, if the temporary interdiction is not granted. This route can actually command greater fees and costs, as the court requires additional hearings to first grant the temporary interdiction and then, the later hearing for the permanent interdiction. To file on an emergency basis, a physician must provide an Affidavit supporting the claims in the Petition and we must file additional Affidavits, if immediate service on the defendant/person to be interdicted cannot occur. The court sets an adversarial hearing within twenty (20) days of signing an Order to permit temporary interdiction.
Attorney Appointment. If a defendant will not be able to make a timely appearance/respond to our petition and obtain counsel, then, we must advise the court to appoint an attorney to represent the Defendant. The court-appointed attorney must visit the defendant and advise the court of his or her recommendations by filing an Answer on the Defendant's behalf and into the record.
Fixing the Hearing or Trial. The petitioner then has to mail a copy of the Order for a hearing to everyone at least ten (10) days prior to the hearing. When the interdiction process or hearing is opposed, that is where matters become more costly. To interdict someone, evidence showing that the interdiction is necessary must be shown by a “clear and convincing” standard – that is a higher burden than “preponderance of the evidence” required in most civil cases. See, La CCP Art. 4548.
Judgment. If the Judge interdicts the Defendant, then, the Judge will sign a Judgment appointing a Curator and under Curator. Those appointed Curators then have formal responsibilities to file formal accountings and oversee the interdict's property. The Judgment must contain certain language and the Curator may need to post a bond. La CCP Art. 4550.
If you have a loved one that may require an interdiction, our office routinely handles non-contested interdictions/guardianships.