Reviewed by Andrea Beauchamp Carroll, Donna W. Lee Professor of Family Law at the Louisiana State University Paul M. Hebert Law Center.
If your child will turn 18 in the next few years, it’s time to start thinking about whether they’ll need help making decisions as an adult. Why? Because when they turn 18 they’re considered an adult. You will no longer have the right to make legal decisions for them unless you go through a process to get legal permission.
In most states, this legal status is called guardianship. If you’re not from Louisiana, read about the process of getting guardianship in other states.
Here’s what we’ll cover in this article:
- How to decide if your child will need Continuing Tutorship or Interdiction?
- What is Continuing Tutorship in Louisiana?
- What are the roles of the tutor and under-tutor?
- How to apply for Continuing Tutorship
- What is Interdiction?
- How to apply for Interdiction
- Is this expensive? About the costs for Continuing Tutorship and Interdiction
- Learn more
How to decide if your child will need Continuing Tutorship or Interdiction?
Most adults with disabilities can make some or all of their own decisions, and there are several ways to support them without taking away their rights. These include Self-Advocacy, Supported Decision-Making, Durable Power of Attorney (often called a “Mandate” in Louisiana) and Health Care Proxies. Think about those less restrictive options if your child is capable of making some decisions on their own, with help.
Before you apply for continuing tutorship or interdiction, think carefully about what decisions your child may be able to make for themselves. The goal is to let them keep as much of their decision-making rights as possible.
Think about these general areas where your adult child will need to make decisions:
- Education
- Finances
- Living situation
- Medical
If it’s clear that your child will not be capable of making most decisions as an adult, then consider taking legal action that would give you (or another person) the right to make legal decisions for them. In Louisiana, there are different terms and choices for this: Continuing Tutorship and Interdiction. Under current law, continuing tutorship lets you make all decisions for your child, and with interdiction, you have a choice of applying it to all decisions (Full) or only to specified decisions (Limited).
Continuing Tutorship is an easier process, but is only an option if your child is under 18 and has a significant intellectual disability.
If your child is over 18 (or will be in the next 6 months or so), look into Interdiction. This is a more complicated process and includes a court hearing.
| Continuing Tutorship | Interdiction | |
| Age of child | 15-18 | 18+ |
| Type of disability it can apply to | Only significant intellectual disability | Physical, intellectual or other disabilities |
| Term for legal decision-maker (Guardian) | Tutor | Curator |
| Term for person w/ disability | – | Interdict |
| Choice of Full or Limited | – | ✔ |
| Includes Court Hearing | Possibly | ✔ |
What is Continuing Tutorship in Louisiana?
Continuing tutorship is a form of what is often called legal guardianship in other states. It’s an option if:
- Your child is between 15 and 18.
- Your child has an intellectual disability, with 2/3 or less of the average mental ability of a person their age. This is an I.Q. of 67 or less.
- You will need to make most or all their decisions for them, even after they turn 18.
What is a “continuing tutorship”?
If you have a child under age 18, you are your child’s “tutor”. This means you have the authority to make decisions for them. The law assumes all minors under 18 are not competent to be legally responsible for themselves. As your child’s tutor, you are responsible for taking care of them. This relationship is called tutorship.
Continuing tutorship makes it legal for you to continue making decisions for your child after they turn 18. In this arrangement, your child is considered a “permanent minor”, and continuing tutorship simply continues your status as their tutor. This is appropriate only if their disability means that they are still not competent to be legally responsible for themselves.
You will keep many of the same rights you had before as parents of a minor, but you have to outline them carefully and get approval from a District Court judge. There are a few steps you must take to prove you need to continue this arrangement. It doesn’t happen automatically.
When should you start the process of getting continuing tutorship?
You can legally start the process once your child turns 15, and it’s best to start between age 15 and 17. This will give you plenty of time to talk about what support they’ll need as an adult. Once your child is 17, you’ll have a good idea of how they will function at age 18.
What are the roles of the tutor and under-tutor?
There are 2 people appointed in a continuing tutorship:
- The Tutor has physical custody of their adult child or family member, and cares for them. The tutor is also responsible for making legal decisions and signing documents like leases or medical forms.
- The Under-Tutor is a person who checks up on the tutor to make sure they are acting in your child’s best interests.
In a 2-parent family, both parents can file a petition with the court for the continuing tutorship. The court will probably ask for one parent to be named as tutor and the other as under-tutor. It may also appoint both parents as co-tutors and another person as under-tutor. The court can name other people to take on these roles, like other relatives, friends, or caretakers.
The tutor’s responsibilities:
- Act in the adult child’s best interest, and make sure they are properly taken care of and educated
- Manage the adult child’s estate and finances
- Give consent for medical treatment
- Submit an annual statement to the court, outlining the estate of the person in their care. (Their estate is all money and property they own)
Tutors can be charged a fine if they mismanage their family member’s finances or other affairs. They can also be held liable (legally responsible) for any damage they cause by their actions or by failing to act.
Tutors must keep any paperwork related to their family member’s legal, medical, educational, or financial matters.
For example:
- Legal records: Copies of court paperwork, including the tutorship appointment
- Medical records: Reports from medical exams, lab reports, consent forms, medicine information, insurance paperwork.
- Financial records: Bank account statements, tax returns
- Educational records: Individualized Education Program (IEP) and progress notes
The under-tutor’s responsibilities:
- Make sure the tutor is carrying out all of their duties.
- Monitor the tutor’s actions and tell the court if the tutor has failed to act in the best interests of the person in their care.
- The under-tutor is required to agree or disagree whenever the tutor wants to make major financial decisions for the person in their care.
Requirements for tutors and under-tutors:
The tutor and under-tutor must both be:
- At least 18 years old
- “Of good moral character” – this means you cannot be convicted of a crime, or owe money to the person you’re trying to get authority over.
- You also can’t be in a lawsuit against the person for whom you’ll be tutor or under-tutor.
Both tutor and under-tutor must take oaths that they will “discharge faithfully the duties of their positions”. This means they will carry out their responsibilities in the best interests of the person in their care.
In some cases the tutor might be required to get a detailed listing of the property that belongs to the person, or to post a bond (put money up front as a deposit) that is equal to the value of the person’s assets.
Once the tutor and under-tutor have met these requirements, they’ll get official letters of tutorship and under-tutorship that list their names and roles.
The tutor and under-tutor may be held legally responsible if the person in their care causes an accident or harms someone else.
If the tutor leaves or dies, does the under-tutor take their place?
No. The under-tutor must tell the court to name a new tutor.
This is where it gets tricky. Let’s say one parent was named tutor and the other under-tutor. The tutor has now died, acted improperly, or is being removed for some other reason. Now the other parent, the “under-tutor”, wants to become the tutor. But they can’t! This move from under-tutor to tutor is not allowed, even if they are the most qualified person.
This is an important consideration when naming an under-tutor for the first time. If there’s a person you would want to take over as tutor if the tutor becomes incapable, that person should not be named under-tutor.
How to apply for Continuing Tutorship
To apply for Continuing Tutorship, you must get your child tested to prove they qualify, then write up a petition, sign oaths, and file the paperwork with the District Court. Many families hire a lawyer. You don’t have to, but it may help to at least get legal advice.
It sounds like a lot, but the good news is that you may not need to have a court hearing or appear before a judge. We’ll go through it step-by-step.
1. Get your child tested through the school system or a qualified mental health professional
Make sure they test your child’s I.Q., and be sure to get a written report that describes your child’s limitations. To qualify for Continuing Tutorship, your child must have less than 2/3 of the mental capacity of a typical child their age, which is an I.Q. of 67 or less. The report must say this.
We know it can be hard to have a number assigned to your child like this. I.Q. tests are required in this case, but they are not a good assessment of a person’s overall abilities. Psychologists now believe there are Multiple Intelligences, and that a person can be highly skilled in some areas but not others. A child’s culture, background and primary language can also influence I.Q. tests.
You can also include these in the report:
- School or medical records
- Standardized test scores
- Results of IQ tests given by other licensed professionals
- Any records that have information about your child’s abilities
2. Write a Petition for Continuing Tutorship that you will file with the court.
The petition should include the decision-making powers you want to hold on to once your child turns 18. The information in the petition, and the words you use, are important. Most families get advice or help from a lawyer who is familiar with this process.
Make the petition as clear as possible. For example, if you want to prevent your child living in particular group homes, you must specify that clearly in the document. You can also include things that your child can make decisions about, like who they room with or date.
By including specifics, you’ll hopefully avoid the court inserting its own opinion. The court will want to give your child as much independence as possible.
3. Send the testing report, most recent IEP, and drafted Petition to the Coroner in the Parish where your child lives.
The Coroner will decide if they think your child has the capacity to make independent decisions. (It may feel a bit creepy to talk to the Coroner, but this is just part of their role in Louisiana.) If the Coroner agrees that your child does not have this capacity, they will issue a Concurrence (agreement) with your Petition. Look up your Parish Coroner’s office here. If you can’t find it, try calling another Coroner’s Office and ask for contact information for your parish.
4. Write up Affidavits swearing under oath that you (the tutor and under-tutor) will take on this responsibility.
Affidavits are written statements signed under oath that say everything in the statement is true. You must have them notarized. This means a notary public has to see you sign these forms, and they must also sign in your presence. The notary is certified to swear they saw the document get signed. Search by zip code for a nearby notary public. Some can notarize a document remotely. There may be a small fee.
5. File the Petition, Concurrence, and Affidavits in the District Court where your child lives.
Find your District Court here. Some courts serve more than one Parish. Each District Court should have its own website that lists helpful information, including the costs for filing documents. Call and ask the Clerk where and how to file your petition.
The Clerk will make sure a judge sees your documents. The judge will make a decision and sign the order. Then the Clerk will record the tutorship in your Parish’s mortgage records.
6. Check back with the Clerk to make sure the tutorship order is recorded.
It might take a couple weeks depending on how busy the court is.
What if my child moves to a different Parish?
- Go to the Clerk of Court in the parish where the petition was originally filed.
- Get a certified copy of the order granting continuing tutorship.
- Take the certified copy of the order to the Clerk of Court in the parish where your child currently lives and re-file it there.
What if my child’s abilities improve, or we want to change the tutorship?
People with disabilities can develop new skills and capabilities. Even I.Q.–which used to be seen as a static number for life– is now known to be able to change over time, especially in teens.
If things change and you feel at some point that your child now has the capacity to make decisions beyond what the Petition said, you can change the Tutorship. It’s always better to let your child do as much independently as they are capable of.
Here’s what you can do:
- Bring evidence to show your child can make independent decisions. This should include a signed statement from the doctor saying your child now has 2/3 of the capacity of a typical young adult their age.
- Go to the District Court where your child lives.
- The Clerk can file this new evidence and make the change.
What is Interdiction?
Interdiction is the same as guardianship, and almost the same as continuing tutorship. It’s an order from the court that gives you, or someone else, the legal right to make decisions for your adult child.
- Interdiction is only for people who do not have the mental capacity to care for themselves or make their own decisions.
- This is the last option to consider because it takes away a person’s legal rights to make decisions about their life. It is the most restrictive option.
- The court will name a curator (guardian) to take care of your adult child. Usually this is a parent, but it doesn’t have to be.
- You can get a Full or Limited Interdiction.
- A Full Interdiction is for people who can’t make any of their own decisions.
- A Limited Interdiction allows them to make certain decisions, which you can specify in the process.
When you apply for interdiction, you can specify which decisions your child can make for themselves, and which you will have the legal right to make for them.
- Curator —The person who gets the legal right to make decisions (often a parent)
- Interdict —The person with a disability who cannot make their own decisions
The curator’s responsibilities
The curator is the person appointed by the court to make decisions. Usually this is a parent, but not always. Curators have specific legal responsibilities.
The curator is responsible for:
- Making sure the person with disabilities is getting all the care and services they need
- Giving consent for medical care and decisions
- Signing legal documents
- Keeping all records (legal, medical, financial, educational)
- Sending annual reports to the court
- Making decisions and acting in the best interest of the interdict
How to apply for interdiction
Basic steps:
- Write a petition for interdiction
- Prove that your adult child cannot make their own decisions
- File the paperwork
- Attend the Court Hearing
- Send the Letter of Appointment to your child’s providers
Most families get a lawyer to help with the interdiction process. It’s a good idea, since this is an important legal responsibility and you want to make sure it’s done right. Your lawyer can help you write up the petition and present it in the Court Hearing.
1. Write the petition for interdiction
This petition has all the contact information for you and your child, and describes in detail why your child cannot make their own decisions or care for themselves. If you are asking for Limited Interdiction, you’ll also say which decisions you want to make legally and which ones your child can make.
The petition should include:
- Your name, age, and current address
- Your relationship to the interdict (your child)
- Your child’s name, age, and current address
- The place where your child will live if you get the interdiction and become curator
- Reasons why the interdiction is necessary, including a description of your child’s disabilities and inability to care for themselves
- If you are requesting full interdiction, explain why a limited interdiction will not be enough
- If you are requesting limited interdiction, explain which decisions you want to control, and why your child can’t manage these decisions on their own
- The name and address of your lawyer
- The reasons why you (or another person) should be appointed as the curator
2. Prove that your adult child cannot make their own decisions
To get an interdiction, you’ll need to prove that your child is unable to make reasoned decisions about their own care and property. It’s your responsibility to give clear and convincing evidence.
Ask for reports on your child’s abilities from these professionals:
- Your child’s doctor
- Therapists and other providers
- A licensed psychologist
- A licensed social worker
Each of them should have experience in evaluating people with intellectual disabilities, and experience working with your child.
3. File the paperwork
The next step is to file the paperwork in the Civil District Court in the parish where your child lives. Before you file, have a lawyer check that all of your paperwork is filled out correctly. In some cases, the court may appoint a lawyer for your adult child.
Find your District Court here. Some courts serve more than one Parish. Each District Court should have its own website that lists helpful information, including the costs for filing documents. Call and ask the Clerk where and how to file your petition.
File these items at the same time:
- The Petition for Interdiction
- A security (deposit)
What is a security?
A security is similar to a bond or deposit. It’s money you bring to the court as a guarantee that you’ll carry out your responsibilities as curator. The amount of security usually depends on your child’s assets, which include money in the bank, property, or anything else of value they own. If your child has always had a significant disability, they probably won’t have many assets and the security will be fairly low.
The court usually holds this security for your child’s entire life. But if you mishandle your child’s money or property, or don’t act in their best interest, the court could give the security back to your child. Only the court can change, reduce, or return the security.
4. Attend the Court Hearing
After you file the paperwork, the next step is the Court Hearing. The Hearing is a formal process that takes place at the courthouse in front of a judge.
Here’s what happens:
The court will assign you a Hearing date and mail it to you. Put that date in your calendar, and tell them if you have a conflict. The court may let you pick the date if it works with the judge’s schedule.
Check that all of your paperwork is ready. If you had to file a medical certificate, make sure the latest copy is dated within 30 days of the hearing date. If you didn’t file the security form yet, make sure you do!
Your child should attend the hearing, if possible. Sometimes there is a good medical or other reason why they shouldn’t attend. If so, talk with their doctor and have them write this on their report.
Each civil district court and each judge may have a different way of doing things. If you have any questions, you can always ask the court staff or the judge’s clerk.
At the Hearing:
- Everyone will be sworn in, promising to tell the truth.
- You or your lawyer may explain why you are requesting interdiction for your child. You will need to present the medical evidence that supports why they need a curator.
- In addition to your lawyer, your child may have their own lawyer too. This lawyer could be appointed by the court. Your child’s lawyer will explain why there is a need for interdiction and how they have come to that decision. They will accept or oppose your proposed petition.
- The judge may ask questions to both sides, then will make a decision. They will either:
- Accept your request for interdiction
- Deny your request, or
- Authorize interdiction, but with changes to your proposal. The changes are usually to give your child more decision-making power in certain areas.
5. Send the Letter of Appointment to your child’s providers
When the interdiction is approved, the judge signs a decree. You will get a certified Letter of Appointment, which is the proof that you are the legal curator. Make sure to keep this in your records.
Send copies of the Letter of Appointment to these people for their records:
- Your child’s primary care doctor
- Other health care providers, including their dentist
- Their school, workplace or Day Program
- Any social service providers that work with your child
You may be asked to show the Letter of Appointment if you are doing things for your adult child like applying for government benefits, or signing consent for medical care.
Is this expensive? About the costs for continuing tutorship and interdiction
There are some costs and filing fees involved in getting a continuing tutorship or interdiction. Interdiction is typically more costly than continuing tutorship. This is because you have to pay for the services of the coroner, a lawyer for your child, and a lawyer to represent you in the court hearing.
Lawyers’ fees
- You’ll need to pay for your own lawyer, if you get one. If you have low income, you can sometimes find free or low-cost legal help.
Lawyer for your child
- If your child is 18 or older, the court will appoint a lawyer for them, and you might need to cover these costs.
Filing fees
- You’ll need to pay the court a filing fee when you submit your forms. These fees vary from parish to parish.
Service
- The legal process requires you to pay to make sure your family member gets an official copy of your petition. Sometimes this is called the sheriff’s fee and is included in the filing fee.
In Louisiana, continuing tutorship and interdiction are the options for getting legal decision-making rights for your child when they become an adult. They are only for cases where your child is not able to make their own decisions. Before you start the process, remember to think about your child’s abilities and capacity for directing their own life. Whatever you end up doing, you will be able to help your child through life as an adult.
