Frequently, guardianship brings to mind images of a minor child in the care of a designated adult family member or friend. However, you can employ the process to obtain legal rights over elderly or aging adults, usually parents, who are losing their physical and mental health capacities. While the process is similar, there are some distinct differences when considering guardianship of an elder parent. Very careful consideration is necessary to determine if guardianship in all of its complexities is the route to take to best protect your aging loved one. In Louisiana, a guardianship is called an interdiction. The guardian is called either the Curator or Curatrix. For the purposes of this blog post, the terms will be used interchangeably.
In the absence of a power of medical attorney and power of attorney previously put in place by your parent, guardianship begins with obtaining a physician’s certificate or doctor’s letter. This letter will state the elder parent cannot care for themselves, perform activities of daily living, or make rational decisions. These letters are form, statewide documents that a doctor completes attesting to the patient’s physical ability and mental acuity.
If your parent already struggles with cognitive decline, be prepared that they may not willingly submit to this type of evaluation. Alzheimer’s, other forms of dementia, and paranoia usually create resistance for patients to agree to evaluation. To keep the process moving forward may require a court to order the aging parent to get the examination. This is very stressful and should only be attempted as a last resort.
This moment in time is difficult for an aging parent who may not see their decline. Often, a trigger for adult children to begin guardianship consideration is an aging parent’s determination to continue driving when they are in no condition to operate a vehicle safely. There are other determiners, but all of them point to a parent’s loss of control and independence over their lives. Be prepared that many will fight to retain their independence. Because the interdiction strips the parent of his or her rights, it is very difficult to obtain, as Louisiana law sets a very high burden on the person pushing for the interdiction. The court is bound by law to make any interdiction judgment as least restrictive as possible.
The court proceedings will determine whether you are fit to become a guardian. Certain things, such as a felony conviction, may disqualify you.
Notifications to the proposed interdict and certain members of their family relatives are required. Certain family members and other interested parties with the legal right to know about the petition for guardianship must receive notification of the application filing.
Less restrictive alternatives to guardianships do exist.
- Power of Attorney – grants a person the right to make financial decisions if you become incapacitated. This legal document is usually done by the elderly parent when they put together their estate planning documents.
- Medical Power of Attorney – grants a person responsible for all health and medical-related decisions of the incapacitated person.
Naming these power of attorney representatives is a personal decision that does not require court involvement. They are more cost-effective than the interdiction process and permit your aging parent a bit more control over who takes care of them. Other less restrictive alternatives to guardianship exist and are situational dependent upon your loved one. In the absence of feasible alternatives, it may well be guardianship is the best solution for your loved one.
When you file for an interdiction, the court usually appoints an attorney to represent the proposed interdict, your loved one. They will represent the proposed interdict as though hired to do so even though they are court-appointed. The attorney’s job is to do what their client, the proposed interdict, wants and to report to the court his or her findings.
Elderly interdiction / guardianship can be a very effective tool to protect your aging parent who is no longer physically or mentally up to the job of self-care. Whether guardianship is right for your family system requires consultation with an experienced guardianship / interdiction attorney. There may be more cost-effective methods for you to achieve similar goals of elderly parent protection. When parents create their estate plan, proactive family involvement can often lead to simplified solutions. Still, there are times when interdiction is necessary and appropriate for the welfare of your aging parent. For assistance, contact our Ruston, LA office by calling us at (318) 255-1760.