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THE "NUTS BOLTS"

Interdiction 101

By Kevin Robshaw

judgment of full interdiction is, in some ways, compromises its fundamental purpose, namely, thi:laiO5L far-reaching legal judgment short of the the protection of -vulnerable persons." A defective ! ! ! death en lty Indeed, it is often referred to as judgment of interdiction also has the potential CO !!! "civil death." A full loses control of vir- create serious legal problcms. 9 In addition to the . Milly every aspect of his life, including decisions potential harm suffered by persons wrongfully in- abcieplace of . residence, medical care, finan- terdicted, the bar and judiciary run the risk of cial affairs and the authority to donate property public censure as the population ages and stories ipreMviia5: bi- mortis cause.` He also loses control emerge about elderly and disabled persons wrong- over family law matters, such as child custody and fully removed from their homes and losing con- •marriage. It is by no means a decision to he made trol of their life savings. - lightly, nor should a judgment of interdiction be The grounds for interdiction require that the rendered when less severe means would suffice. interests of the proposed interdict cannot bc pro- If the defendant in an interdiction suit is not tected by less restrictive means." Some less re- personally served, the court is precluded from strictive alternatives to interdiction include prom:- granting the relief sought in the petition. Even ratic as, mandates and advance directives. For fi- so, some petitions for interdiction filed in Louisi- nancial matters, an alternative payee may be d es- ana since a revision of the interdiction laws took istated 1 or a trust established. The medical con- effect on July 1, 2001 have no proof of personal sent law ! is helpful when medical authorization service. Indeed, in at least one case, service in- is necessary. Involnntary commitment for mental. structions stated, "Defendant not competent to health or substance abuse treatment, ig or for de- receive service!" The new law sets forth other velopmental disabilities selThriceS- , 1 ° may be an op- requirements and duties for attorneys which merit tion. A limited, rather Than full, interdiction may review. be all that is warranted. If the court determines • Failure to follow the requirements of the law that less restrictive means can protect the

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defendants interests, the court should A list of the information that stantial likelihood that the grounds for deny full interdiction:5 interdiction exist and that substantial The following "skinny" is designed must be included in the harm to the health, safety or property of to help point counsel unfamiliar with in- verified petition is found in the person sought to be interdicted is terdiction laws in the right direction. A La. C. C.P. art. 4541. The imminent." more detailed outline, including sample All orders, pleadings and supporting forms, is available online at the Louisi:- petition must include, among documents must be personally served on ma State Bar Association's Web site:6 other things, the names and the defendant and his attorney no later than 72 hours prior to the preliminary 0. The petition must be detailed, addresses of certain relatives, interdiction hearing." To the extent pos- verified andpersonally served. and it must be personally sible, petitioner shall give reasonable notice of the hearing to all other persons A Est of the information that must be served on the defendant. included in the verified petition is found named in the petition? in La. C.C.1)_ art. 4541. The petition must A judgment of preliminary interdic- include, among other things, the names tion terminates 30 days after being and addresses of certain relatives, and it sinned, unless extended for not more than must be personally served on the defen- another 30 days; 6 the date of termination dant' ? An attorney cannot accept service and a verified petition or affidavit? A must be written on the judgment.37 for the defendant." Notice shall be pro- petition for interdiction must be pend- vided to each other person named in the ing, The order must schedule a prelimi- Attorney duties, sanctions and fees. petition." nary hearing within 10 days." The attorney shall personally visit the A. judgment of temporary interdiction defendant," and, to the extent possible, • Grounds for full and limited terminates 10 days after it is signed:" discuss the allegations in the petition, die interdiction and consideration the date of termination must be written relevant facts and law, and the rights and of less restrictive means. on the judgment." There may be a 10- options of the defendant. Failure to per- A court may order full interdiction day extension under limited circum- form these duties may subject the attor- when a person- stances. ney to sanctions." Costs and attorney fees, or any part due to an infirmity, is unable con- ► Preliminary interdiction terminate, thereof, may be awarded against any sistently to make reasoned deci- after 30 days. party, except that no attorney fees are sions regarding the care of his per- A preliminary interdiction is similar awarded to a petitioner when judgment son and property, or to communi- to a preliminary injunction. A prelimi- is granted against the petitioner or the cate those decisions, and whose nary interdiction cannot be granted prior petition. is dismissed on the merits!" interests cannot be protected by less to an adversary hearing?' The hearing restrictive means." shall be held within 20 days of signing II.- Hearings. the order scheduling the hearing." Interdiction proceedings shall be The standard for limited interdiction is It may be ordered when there is a sub - heard summarily and by preference." identical, except a limited interdiction can be ordered when there is incapacity concerning the "person or property, or any aspect of either." 2' ANNE RICAN Attorney Positions - Temporary interdiction terminates after 10 days. Litigation 1 - 5 yrs

Temporary interdiction is an ox par to W/i ere Lanoyers Look for Laiwyers Labor Employment - 5 yrs emergency procedure similar to a TROF Asset Based Lending 4- 15 yrs The court must find that there will be Contact: Kevin Ft Fisher, Esq. irreparable harm before a hearing can Direct: (504) 616-4166 Prominent New Orleans law firms hove be held? It may be ordered when there kevi n@americanlegalsearch_com immediate openings for good lawyers] is a substantial likelihood that the See other listings at Strong academics required. All inquiries grounds for interdiction exist and sub- www.AmericanLegelSearch.corn are strictly confidential. stantial harm to the health, safety or property of the interdict is ittallitienCi is Tampa , Nazhvilla The petitioner must file two affidavits

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Notice of the interdiction hearing is The court chooses the best See La. C.C.P. an. 4544, Comment (c). served in the warmer prescribed for sum- 19.La. C.C.P. art, 4545. mary proceedings, and personal service person to be curator 20. La. Civ.C. art. 389, 21. La. Civ.C, art. 390. is required on the defendant.' Notice according to an order of 22. See La. C.C.P. art. 4549, Comment (a). must be given to each other person preference. "Letters of 73. La. cc.? art 4549(A)(1). named in the petition by first class mail, 24. La. Civ.C. art, 391. return receipt requested, at least 10 clays Curatorship" are issued when 25. La- C.C.P. art. 4549(A)(2). 26. La. Civ.C. art. 391. prior to the hearing.` R- the curator furnishes security 27. La. C.C.?, art. 4549(A.)(1). The defendant shall be present at the and takes an oath. 28. La. Civ,C. art. 397. hearing, except for good cause. 44 The 29. La. C.C.P. art. 4551(0). petitioner has the burden of proof by clear The "letters" must set forth JO. La. Civc. an. 397. and convincing evidence." 31. La. C,C,P, art. 4549(B)(1)- the date, if any, of expiration, 32. Id, ■ Judgment. and enumerate the powers 33. La. Civ.C. an_ 391, 34, La, C.C.P. art, 4549(B)(2). A judgment of interdiction shall ap- if it is a limited curator 35. Id. point a curator and undercurator and 36. La. Civ.C. am 397. state that their powers commence only 37. La. C.C.P. art. 4551(C)- upon qualification, direct the clerk of 38. lthildas excused by the court for good court to record the judgment, enumerate cause. La. C.C.P. an, 4544(B). 39. Id. the powers if it is a limited curator, and 2. But see La. C.C.P. art. 4566(1). A tempo- 40. La, C.C.P. art. 4550. rary curator appointed ex parer does nor have set forth the dare of termination if it is a 41. La. C.C.P. art. 4547, authority to place the interdict in a long-term resi- temporary or preliminary interdictiOn.46 42. La. CDT". art 4546, reel-nag to La, dential care facility unfit after a hearing. C.C.P. art. 4543(A). 3. La, R.S. 40:1299.53. 43. La C.C.P art 4546. 11. Curator and undercurator, letters 4_ La, Civ.C. an. 395. as amended, 2003 La. 44. La. C.C.P. an 4547. of curatorship, annual reports Acts 1008; La. C.C.? art. 1482, as unleaded, 45. La. C.C.P. art. 4548. and liability. 2003 La. Acts 1008. 46. La. C.C.P. art. 4551. 5. La. Civ.C. art. 395. Comment. The Conn chooses the best person to See. e.g., 47. La. C.C.P. an, 4561. (d). be curator according to an order of pref- La. C.C.P. arts. 45624564, 6. La. C.C.P. art. 4543(A) 48. erence.' "Letters of Curatorship" are is- 49, La. C.C.P. art. 4564. La, C.C.? an. 4552(B). sued when the curator furnishes security (Service of the citation and petition shall 50. 51.La. C.C.P. art. 4569 (A). and takes an oath." The "letters" must be personal . Service is effective as of 52. La Civ.C. an. 2319, the date a notarized affidavit is filed into set forth the date, if any, of expiration, 53. La acs. arl. 4565(A)(1). the record affirming personal delivery. and enumerate the powers if it is .a lim- 54. La_ C.C.?, art 4565(A)(1). The duties of Failure to serve the defendant as provided ited curator" The curator should, within the undercurator arc set forth in Le. C.C.P. art. in this Paragraph shall preclude the court 4565(D) and La. Civ,C. an. 393. 15 days, record the judgment in every par- from grantingthe relief sought in the peti- ish in which the interdict owns immov- tion),

able property, 5° and is responsible for fil- ing an annual account and/or report and 7. Id. Research performed by Mental Health Advocacy Service attorneys, to help ensure that providing a copy to the underc-urator51 the rights of persons with mental disabilities are Neither a curator nor an undercurator protected, La. R.S. 281203). Kevin Robshani directs Men- is personally responsible to a third per- 8.Jeanne Louise Carrier, "Reconstructing the ralBealthAduoca rg an son for a delicmal obligation of the in- Grounds for Interdiction," 54 La, L. Rev. 1199 agency which provides legal terdict in his charge solely by reason of (i994). representation for children and his office.' P. Consider, for example, title to real prop- adults being civilly =minified erty that has passed through the hands of a cura- and helps ensure their legal The court selects the person best able tor appointed in an interdiction proceeding in rIghis are protected. He is a to be undercurator,' who qualifies upon which the defendant was neverpersonally served. member of the Legal Services and taking an oath." 10_ La. Civ.C. arc 389. for Persons with Disabilities Comniniee LOuLSiana Siete 11_ See, e.g., La. R.S. 46:431. Elder Law Task Force of the Bar Associabon. He serves an rue Intereiclien FOOTNOTES 12. La. R.S. 40:1299.50, el scat prole Loursiono Law Meths= and 13. er seg. La. 11_,S. 28:2, provided testimony on veriettS interdi cline bills La. R.S. 28:404. 1. Doll v. Doll, 156 Sold 275 (La. App. 4 14. See in the Louisiana Legislature. He received his Cir. 1963), cited in William Reed August, "The 15.See La. Civ.C. art. 389, Comment (e). JD degree from 71ilone Law School in 1977. New Law of Interdien on - Clear mid Convinc- 16. htipirnavn,Isba.org/Bar_Biformation/ (Ste, 817, 150 Third Si.. Baton Rouge, LA ing Revision?," 47 Loy. L_ Rev. 1059, 1070 Interdiction Reference itinterials.pdf 70801) (2001). 17. La, C.C.P. an. 4543(A).

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