I. WHY IS THIS
IMPORTANT?
Louisiana law states that all persons eighteen years
of age or older are competent and capable of governing themselves by directing
their own affairs. This is true of an
individual with mental retardation, mental illness, or other type of
disability, as well as for someone who does not have such impairments, unless a
court has declared the individual to be incompetent.
A need for change in the
legal status of an adult arises when that person, for whatever reason, is
unable to direct his/her own affairs by making his/her own decisions. When a person with severe mental retardation
who lacks the ability to make reasonable decisions reaches the age of majority
(age 18 in Louisiana), or when an adult who was previously able to make his/her
own decisions loses that ability due to severe mental illness, brain injury, or
a medical condition, decision-making authority must be transferred so that
caregivers have the legal right to make decisions for that individual. The purpose of the transfer is to ensure
that decisions made on behalf of an incompetent person are in his/her best
interest.
II. KEY POINTS
Several legal status options are available for
people who need assistance with decision-making.
Interdiction: An interdiction is the most
intrusive procedure effecting an individual's rights and responsibilities. It is granted when a person who is eighteen
years or older has an infirmity that prevents him/her from consistently making
reasoned decisions regarding the care of his/her person and property or when he/she
has no ability to communicate his/her decisions to others. The court appoints: 1) a curator, whose job
it is to make decisions on behalf of the interdict, and 2) an undercurator,
whose job it is to monitor the actions of the curator and report any improper
conduct or lapses in performance to the court.
The rights lost by a person who is interdicted
include: the right to contract; the right to marry; the right to vote; the
right to sue or be sued; and any other right that requires legal consent. As a result, the curator has the responsibility
of making the interdict's medical decisions, his/her housing decisions, and any
decisions regarding the interdict's property and finances.
To obtain an interdiction, first a petition for
interdiction must be filed in the civil district court where the defendant
(person to be interdicted) lives, and the petition must be served upon the
defendant. Next, the court will appoint
an attorney for the defendant if he/she does not have one or cannot afford one,
and the attorney will meet with the defendant to discuss the case and prepare
and file an answer to the petition. An
interdiction requires a hearing. At the
hearing, the person seeking the interdiction must provide clear and convincing
proof of the allegations justifying the interdiction. The court may require an examination by an expert in the type of
infirmity alleged. Both sides are
allowed to present any relevant evidence and witnesses, and they are allowed to
cross-examine the witnesses of the other side.
Limited
Interdiction: A limited interdiction is used for the same reasons and obtained in
the same manner as a full interdiction.
However, a limited interdiction only infringes on the rights of the
interdict to the extent necessary. If a
person needs assistance managing one area of his/her life, such as financial
matters, the curator will have the authority to make decisions about that one
matter, while leaving the interdict the ability to regulate the remaining areas
of his/her life. Because this option is
so much less invasive than a full interdiction, careful and thoughtful
consideration should be given to this option as an alternative to full
interdiction whenever possible.
Continuing
Tutorship:
A tutor is a person, such as a parent or other guardian, who is legally
responsible for the care of a minor under the age of eighteen. Until the minor is eighteen, all
decision-making authority rests with the tutor, since minors are considered to
be incompetent under the law. The
effect of a continuing tutorship is for the tutor to retain the authority to
make decisions for the subject of the tutorship after he/she reaches the age of
majority (age 18 in Louisiana), if it is proven that he/she possesses less than
two-thirds of the average mental ability of a person of the same age with
normal intelligence. This means that
the individual must have an approximate I.Q. (Intelligence Quotient) score of
less than 67, as evaluated by an appropriate professional using accepted
testing procedures. The rights to
contract, sue or be sued, and consent to medical treatment stay with the tutor
instead of transferring to the subject of the tutorship when he/she turns
eighteen, as they otherwise would. The
subject retains his/her right to vote and can marry with the consent of the
tutor.
To obtain a continuing tutorship, a petition must be
filed with the court and a hearing takes place, although it is not necessary to
have an adversarial hearing like in an interdiction unless the defendant has
already turned eighteen at the time of petition. The parents are usually named tutor, but anyone who is entitled
to custody is eligible. The tutor has
the authority to maintain custody of and manage the estate of the
defendant. As a protection for the
subject of the tutorship, an undertutor is also appointed to monitor the
actions of the tutor and to inform the court of any improper conduct by the
tutor.
Power of
Attorney:
A power of attorney, or procuration, is a contract by which one person grants
to another person the power to perform certain activities on his/her
behalf. It differs from other legal
status alterations in that it is purely voluntary: the person granting it
decides what power to grant and to whom, and he/she can change his/her mind and
revoke the powers at any time.
Moreover, the person does not lose or give up ultimate authority to make
decisions; rather, the authority and responsibility are shared with another
person.
Any legally competent adult can grant a power of
attorney to any other legally competent adult.
The power is granted in a notarized statement, by any other form of
writing, or by oral agreement, though in writing is advisable since it firmly
establishes what was granted.
Representative
Payee:
Social Security Administration (SSA) recognizes that some beneficiaries may be
unable to manage their own benefits due to youth or disability. In such a case, SSA will appoint a
representative payee, which can be either a person or an organization, to
receive and manage the benefits on behalf of the beneficiary. A representative payee will be appointed if
the beneficiary is an alcoholic or a drug addict, if he/she is under eighteen,
or if he/she is legally incompetent.
The representative payee must use the payments only for the use and
benefit of the beneficiary and his/her current maintenance.
III. ROLES/NEXT STEPS
Students/Young Adults:
Young adults who are approaching their eighteenth birthdays should evaluate their individual situations to decide whether any specific planning (such as appointing a representative payee or executing a power of attorney) is needed to address legal status issues.
The transition planning process can be used to gather information and to investigate options so that appropriate decisions can be made. The transition planning process provides a unique opportunity for young adults with disabilities and their families to be part of a team that can address these and other issues, rather than trying to do so alone.
Families:
Families considering a change in legal status for one of their members should think about what his/her specific needs are and how they can best be addressed. Once a decision has been made as to what needs must be met, they should weigh the different legal status options and decide which option is the least restrictive, yet most effective, in order to provide for the best interest of their family member. If it is determined that an interdiction (full or limited) or continuing tutorship is necessary, an attorney must be consulted. If a power of attorney is decided on, it is still recommended that an attorney be consulted. If representative payment is needed, the SSA must be notified.
Agencies:
Agencies serving persons with disabilities should offer information and counseling to clients who may need assistance to better understand legal status issues. Agency representatives should help in evaluating the needs and best fit for each family and can provide guidance throughout the process. However, personnel who are not legally trained should refrain form giving legal advice. Rather, they should develop and maintain a list of attorneys who specialize in this area of the law for purposes of referring individuals with disabilities and their families to knowledgeable legal help.
IV. RESOURCES/CONTACTS
Advocacy Center
225 Baronne Street, Suite 2112
New Orleans, LA 70112-1724
Toll-Free 1-800-960-7705
Louisiana Planning Council on Developmental
Disabilities
P. O. Box 3455
Baton Rouge, LA 70821-3455
(225) 342-6804
Louisiana Guardianship Services, Inc.
2515 Canal Street, Suite 402
New Orleans, LA 70119
(504) 821-3100; FAX (504) 821-3167
Governor's Office of Elderly Affairs
P. O. Box 80374
Baton Rouge, LA 70898-0374
(225) 925-1700
Social Security Administration
Toll-Free 1-800-772-1213
V. REFERENCES
Interdiction: Title IX of Book I of the
Civil Code, articles 389 through 399, 1482, and 2319
Title VIII of Book VII of the Louisiana Code of
Civil Procedure, articles 4541 through 4556, 4561 through 4569
Continuing
Tutorship:
Title VIII of the Louisiana Civil Code, articles 246 through 385
Title VI of the Louisiana Code of Civil Procedure,
articles 4031 through 4557
Power of Attorney: Title XV of the Louisiana
Civil Code, articles 2985 through 3032
Representative
Payment:
Title 20 Code of Federal Regulations, Subpart F, Sections 416.601 through
416.665
