Louisiana Guardianship Explained
When it is desirable for one person to exercise control over the affairs of another, and the person who needs assistance has not executed a power of attorney, a court may appoint a guardian. A petition for the appointment of a curator or to have someone declared interdict may be filed by the proposed curator (who would be the future guardian), by a family member of the person who needs assistance or with a third party seeking assistance with regard to the property of the person who needs assistance. Without a durable power of attorney executed by the person who needs assistance, formal judicial intervention may be necessary to gain access to bank accounts or to manage property of the person who needs assistance. Also, if a person is mentally incompetent as determined by the court, his acts are null and void. As such, a guardianship (also called curatorship) may be the only way to sign a will or sell property of the person who needs assistance. At the outset , a curator (guardian) should be familiar with the frequently used terms as they relate to Louisiana guardianships: (a) "Curator" (guardian): the person or entity appointed by the court to manage the affairs of the person under curatorship; (b) "Wards" (incapacitated persons): persons under curatorship; (c) "Tutors" (guardians): persons who are determined by the court to be incapacitated; (d) "Interdicts": persons who are declared by the court to be interdicted; (e) "Curators"; persons who are determined by the court to be disabled and require management of their affairs but are not totally incapacitated; (f) "Tutors"; persons who are determined by the court not to be interdicts. A curator will have the general administration and conservation of the property of an incapacitated person. He has the right to exercise all acts of administration of the ward’s property that are necessary to permit its normal administration. In exercising that right, he is charged with the responsibility of acting as a prudent Administrator as defined by Louisiana Civil Code. In addition to the general powers of administration, he has certain specific powers absent contrary provisions in the order of appointment or applicable law. A tutor manages the person of an incapacitated adult. He has the right to care for the personal and physical well-being of the tutor subject to the supervision of the court.
Different Louisiana Guardianship Forms
In Louisiana, there are a variety of guardianship forms to choose from, each serving a different purpose. A guardianship over the property or the person is primarily for disabled adults and certain minors. A temporary guardianship form, on the other hand, is for those who expect that the need for guardianship will end in the future, while a permanent guardianship over the property or the person is for those who expect that the need will last indefinitely.
Guardianship forms for adults include a request for a tutor for a disabled adult as well as judgments appointing a provisional and a permanent guardian over the property. Forms are also available for requesting remaining parental rights over an adult child, a tutor over the person of an adult, and a curator when the adult is missing.
As for minor children, the forms relate both to the property rights and parental rights of minors. For the former, there are forms for a parent who will manage the property of a minor and a request and judgment for a tutor for the property of a minor child. For parental rights, if the parents are separated and one wishes to exercise the remaining parental rights over the other parent’s minor child, Louisiana has forms for a petition and judgment making said appointment.
A temporary appointment of a "provisional" tutor occurs during the pendency of a long-term guardianship. The form for such a final appointment is a request and judgment appointing a provisional and permanent guardian.
How to Get Louisiana Guardianship Forms
In Louisiana, guardianship forms are typically provided by the Clerk of Court’s office, as guardianships are created and administered through the courts. Most of the forms required for initiating the guardianship process can be found on the website of the Louisiana Judicial College, which is a statewide program of the Louisiana Supreme Court in conjunction with the Division of Administrative Law. The Louisiana Judicial College sets and maintains statewide rules and standards for Court Forms. All guardianship pleadings required by law are available on this site.
These Guardianship forms are not "fillable," meaning that you need to print out each form and fill it out by hand, or download and save the PDF to your computer so that you can fill it out electronically. Keep in mind that you will need to print out each form again in order to sign and date it, as most Louisiana Courts require an original signature on all filings. While in most cases the signing of guardianship forms can be done in front of the notary at your attorney’s office, if you are completing these forms without an attorney, you will need to sign and date all forms in front of a notary. If you are out of state or do not have access to a notary, you may be able to sign and date the forms in front of the Clerk of Court’s office in the parish of the proposed ward’s residence. Each Clerk of Court’s office has different policies with regard to signing forms in front of a notary. While fees are generally prohibited for witnessing the petitioner’s signature, the Clerk of Court’s office may charge a nominal fee for authentication of the forms (which you likely will need) and may also charge an "authentication fee" to authenticate the signature of the physician(s) visiting the proposed ward.
You can find the form you need by looking through the list of forms provided on the Louisiana Judiciary website. If you are unsure exactly which pleading form you need, Louisiana’s guardianship law may assist you in determining what is needed. For example, to commence the guardianship process (and for an emergency guardianship), your attorney will likely file a petition for interdiction along with a Rule to Show Cause.
Completing Louisiana Guardianship Forms
Filling out Louisiana guardianship forms can be a daunting task, but with a methodical approach and attention to detail, the process can be straightforward. It is essential to approach the task of completing Louisiana guardianship papers with accuracy, as any errors can lead to delays or complications in the proceedings. This section will outline the step-by-step process for filling out guardianship forms in Louisiana.
Firstly, identify the specific form or forms that need to be completed. Each guardianship case can vary depending on the type of disability of the alleged incapacitated person and the needs of the petitioner. The most common forms include the Petition for Appointment of Guardian, Rule to Show Cause, Order Appointing Guardian, Judgment of Appointment of Guardian, Acceptance of Duty by Guardian, and Oath of Guardian.
When filling out each form, ensure that all requested information is provided accurately. For instance, details regarding the name, address, age, and date of birth of the alleged incapacitated person and the petitioner should be filled out precisely in accordance with the actual information. Similarly, when it comes to addressing the medical condition of the person with a disability, be specific about the diagnosis and other relevant details that may have an impact on their need for guardianship.
Another important tip is to read each question or section of the form carefully before answering. Some questions may require detailed explanations or supporting documentation. Be sure to check if attachments are required and provide them in the exact order or manner requested.
Pay particular attention to the deadlines for filing each form and any other actions required on your part. Many forms ask for signatures from themselves and from other parties named on the form. It is imperative to fill out each line correctly and sign where necessary to avoid processing delays.
If there’s a need for any clarification on the type of information requested, consult the guidance notes that might accompany the guardianship forms or seek legal advice. It is much better to seek clarification at this stage than to have to refile the forms later due to confusion over the type of information a specific question seeks to elicit.
Lastly, double-check the completed forms for any spelling mistakes or typographical errors. Small oversights can have larger implications, especially in legal documents. Although no particular formatting or specific font size is usually required, make sure the print is legible.
By following these steps and being meticulous in the completion of the forms, you can ensure that you have done everything possible to move the guardianship application process along in as efficient a manner as possible.
Submitting Louisiana Guardianship Forms to Court
When the Petition for Appointment of Guardian is prepared, the court forms for the particular parish or district must be completed. These forms are available on the website of the Louisiana Supreme Court. The next course of action is to file the forms with the court, typically in the parish or district in which the Proposed Ward permanently resides. The Petition (including the underlying Affidavit of Person Familiar with Alleged Incompetent) should be filed with the court through the Clerk of Court for the Parish .
Along with the Petition, the necessary accompanying documentation such as the Affidavit, Certificate of Medical Examination or Certificate of Physician should be submitted. The Affidavit of Person Familiar with Alleged Incompetent must be sworn and notarized. Then, a hearing is set within sixty days of the date of filing the Petition. Notice to the Proposed Ward is given 20 days prior to the hearing and notice is published in the local newspaper.
If the Petition for Appointment of Guardian is contested, hearings are held on all of the contested issues. However, when the Petition is uncontested, an Order appointing the Guardian may be issued on the same day as the hearing.
Legal Help with Louisiana Guardianship Forms
Navigating the complex legal requirements of guardianships can be a daunting task, and it’s crucial to seek legal advice when dealing with such issues. An experienced guardianship attorney can help ensure that all necessary forms are completed correctly, and that all deadlines are met. They can also help to explain any unfamiliar legal terms, making the process less stressful and more comprehensible.
There are several resources for finding legal assistance with guardianship forms in Louisiana. An excellent place to start is the Louisiana State Bar Association’s legal referral service, which can connect individuals with a qualified attorney who specializes in the relevant area of law. The Louisiana Supreme Court also offers resources to help citizens locate legal aid. For those who can’t afford an attorney, there are a number of free or low-cost legal aid providers throughout the state, including area offices of the Louisiana Civil Justice Center, Louisiana Legal Services, and Southeast Louisiana Legal Services.
In addition, there are nonprofit organizations that may be able to provide assistance in the guardianship process, as well as resources located at public libraries and other community centers.
Louisiana Guardianship Update and Termination
Under certain circumstances, a guardianship may be updated and/or terminated with the proper legal filings and upon a hearing. These circumstances may include:
1. Change in Circumstances. For the Ward or the Guardian
The most common way this situation arises is the change in circumstances of the Ward. The Ward’s cognitive decline and resulting limitations may have increased to the extent assigning a guardian is prudent. Or maybe the mental decline was a result of a one-time head trauma or instance that has resolved, and the Ward’s mental faculties have now returned to a satisfactory level to allow for the return to independence. A new guardian could also be appointed to step in for a parent who is incapacitated due to an illness or injury.
If a guardian is no longer capable of serving, the current guardian must file a petition to have him or herself removed as guardian or resign as guardian. This would be the situation if the current guardian becomes incompetent or otherwise unable to serve as guardian. This is also the situation if the current guardian moves out of the state or country, or if the guardian passes away.
2. Ward’s Death
A guardianship of the estate ends when the Ward dies. At that time, the representative of the Ward’s succession will take charge of the Ward’s assets and take the necessary steps to formally terminate the guardianship.
3. Natural Termination
A guardianship may naturally terminate by its own terms under circumstances foreseen and provided for in the relevant court ordered Judgment of Appointment.
Frequently Asked Questions Regarding Louisiana Guardianship Forms
Here are some common questions that I see:
Are Guardianship Forms Valid in Other States? Yes, these forms are effective in Louisiana only, and are based on Louisiana law.
Will I Have to Renew the Guardianship? Yes, the guardianship of the person and property is subject to annual court review. You will need to file annual accountings with the court and , in some cases, appear personally before the judge.
Are any of the parties involved deprived of rights? No, the person with a disability retains all rights not specifically removed in the guardianship agreement. The guardian also retains all of his or her rights as only some specific rights are removed.
