Comment by Joseph C. Wilkinson, Jr.
In May of 1979, the Louisiana Supreme Court decided the case of Interdiction of Fabre, in which it refused to interdict a moderately mentally retarded woman who was capable of caring for herself and her child, but incapable of administering the substantial estate left her by her husband. Given Louisiana's substantive law of interdiction, the decision was undoubtedly correct. A judgment of interdiction, with its accompanying broad deprivations of rights and liberty, would have been inappropriate for the defendant, Mary Fabre, a woman of only limited incapacities. Yet, the decision left Mrs. Fabre without any assistance or protection in an area in which she genuinely required both—the administration of her estate.
The Fabre case illustrated a glaring weakness in Louisiana's interdiction scheme as it exists today. That weakness is the absence of a provision for limited interdiction of the mentally disabled person who is capable of acting competently in some activities but not in others. Louisiana's current interdiction system is an all-or-nothing proposition. If the mentally disabled person is adjudged totally incapable of caring for both his person and his estate, a complete interdiction may be established and a plenary curator appointed to handle virtually all his affairs. On the other hand, if either prerequisite is not met, a judgment of interdiction cannot be issued, and the person is presumed totally competent. Thus, unlike the many states that have recognized the varying needs and abilities of individual mentally disabled persons by adopting limited guardianship statutes, Louisiana clings to a plenary curatorship system that is often ineffective and increasingly anachronistic.
Louisiana's total interdiction approach ignores the fact that not all mentally disabled persons require the great restrictions of their liberty that interdiction entails. Many of these people, especially the mildly or moderately mentally retarded, are capable of performing certain functions and exercising certain rights without the guidance of a curator. For these people, appointment of a curator with limited powers or establishment of a limited interdiction is all that is necessary. A limited interdiction arrangement would involve a judicial determination of the functions the mentally disabled person cannot perform and the appointment of a curator to assist the individual only in those specific areas of incompetency. In all other areas, the individual's competency would be presumed and his personal independence maintained.
The need for change has been recognized by some legislators. A resolution calling for legislative study of the concept of limited interdiction and a bill proposing amendment of the Civil Code to add an article dealing with limited interdiction were filed during the 1979 regular session of the legislature. Neither proposal was adopted by both the House and the Senate. It is the purpose of this comment to encourage the adoption of a Code article establishing a limited interdiction procedure in Louisiana. In addition, a Civil Code article embodying the concept of limited interdiction will be proposed.
About the Author
Joseph C. Wilkinson, Jr.
Citation
54 Tul. L. Rev. 164 (1979)