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Posted in Car Accidents on February 10, 2021
When an adult family member sustains an injury in an auto accident, they have the right to make a claim or file a lawsuit on their own behalf. Even if you are the person’s parent, you have no authority to control their interests once they reach adulthood. When a person reaches age 18 or becomes an emancipated minor, Louisiana law presumes that they are competent. The presumption of competency only changes if the relative becomes disabled, is legally declared incompetent, or is incapable of making decisions about personal, financial, and other vital life issues.
If any of these situations occur, you must ask the court for permission to handle your relative’s personal and financial matters. If your relative has been injured in an accident, you must proceed cautiously but act quickly. In most instances, when a person sustains injuries in Louisiana, they have only one year in which to make a claim or file a lawsuit. If you plan to initiate the process of controlling your injured relative’s personal affairs, you must seek legal advice concerning your legal rights and deadlines.
When you believe that an adult family member lacks the capacity to act on his own behalf, you can’t just step in and take over. Based on Louisiana Civil Code Title lX, §389, you must go through a legal process and prove your allegations in court.
To initiate the interdiction process, you must file a civil petition with the court in the parish where your relative lives. Your petition must name the person you wish to interdict as the defendant and notify them by personal service. You must also pay court costs, filing fees, attorney fees, and any other expenses. As with any civil legal action, the defendant has the right to legal representation and the right to be present when the court holds a hearing. Once the court approves the petitions, it refers to the defendant as the interdict.
Before you initiate the process, you must be sure that it’s the right decision. If the court denies your petition, the defendant has the right to recover damages from you.
You don’t necessarily have to be a relative to file an interdiction suit. Louisiana Code of Civil Procedure, Title Vlll, 4541explains that “any person” may file a petition to interdict another adult or an emancipated minor. The petitioner must prove their case by producing clear and convincing evidence that the person should be interdicted. Regardless of who files the petition, the court must select a curator that is best suited to make decisions for the interdicted person.
The court has a duty to appoint a curator it deems most capable of performing a curator’s duties. If you wish to fill the role, you must qualify based on the standards outlined in CCP§ 4561. The court first considers people who have an established relationship with the interdict.
Louisiana Code also lists several categories of people who do not qualify to act as curators. The list includes people under age 18, interdicted people, and a person who lives in another state and doesn’t have a registered agent in Louisiana.
Certain people do not disqualify to act as curators, but they may serve with good cause. These include convicted felons, people indebted to the interdict, anyone with a lawsuit pending against the interdict, anyone affiliated with a long-term care facility where the interdict resides.
Once the court appoints you as your relative’s curator, you must complete the qualification process.
If you do not meet these qualifications within 10 days, the court has the authority to revoke your appointment and appoint someone else.
When you believe it’s best to make decisions for your adult child, you must seek permission through the courts. The court grants continuing tutorship when you prove your adult child or teenager age 15 or older has intellectual disabilities. You may file a petition for Continuing or Permanent Tutorship if your child tested at two-thirds of the intellectual functioning of a person the same age. Your evidence must include qualifying test results. The court follows the same procedural process used during interdiction hearings.
When the judge approves an interdiction or a continuing or permanent tutorship, your relative has no authority to act on their own behalf. You will have the duty and responsibility to deal with insurers, responsible parties, and anyone else involved in handling your relative’s accident claim. You must advise all interested parties that you have sole authority to act on your relative’s behalf.
You control whether to make a claim or file a lawsuit. You determine if the insurers are negotiating fairly or if you need to file a lawsuit before the statute of limitations runs. Once you become your relative’s curator, any decision they make is invalid.
When your relative sustains an auto accident injury, you want the responsible parties and their insurers to treat them fairly. If a relative has difficulty communicating and making decisions, they might need someone to act on their behalf. Traditionally, the statute of limitations runs one year after an accident. Given your relative’s competency issues, you may have additional time to make a claim, but you should still act quickly. A personal injury attorney provides the information you need to make the right decisions for you and your loved one.
Contact The Law Offices of John Redmann to schedule a consultation. We have offices in Gretna and Metairie, Louisiana. We will talk to you, discuss the circumstances, and determine if we can help you. To schedule a complimentary legal consultation, call us at 504-500-5000.