Louisiana Tutorship Explained: How to Appoint a Tutor and Protect a Special Needs Child After 18

In Louisiana, the concept of tutorship plays a central role in protecting the interests of minor children. Because Louisiana follows a civil law system, its rules differ substantially from those of other states. Parents, relatives, and prospective tutors should understand the legal framework governing tutorship, the types of tutors recognized under Louisiana law, and the procedures for appointment. This article provides an overview of the key considerations involved in appointing a tutor in Louisiana, as well as the options available for adults with special needs or disabilities who may require legal assistance beyond the age of 18.

What is Tutorship in Louisiana?

Louisiana law does not use the term “legal guardian” in the same sense as other states. Instead, the Louisiana Civil Code provides a detailed regime for tutors and undertutors, each with distinct responsibilities.

Tutorship is a legal relationship where an adult is designated to care for a minor child and manage the child’s property, affairs, and personal interests, after the parents have passed away or are unable to do so. This means a tutor has the legal authority to make decisions related to the child’s upbringing, including those related to their healthcare, education, and general welfare. In addition to providing for daily needs and emotional well-being, the tutor is responsible for preparing a detailed inventory of the child’s assets, managing funds prudently (subject to court approval for major transactions), and preserving the minor’s property until the child is a legal adult.

Whenever a tutor is appointed, Louisiana law also requires an undertutor. An undertutor is a person appointed to oversee the tutor and ensure that the tutor is acting in the minor child’s best interest. In the event the tutor is acting against the minor’s interest, the undertutor has the authority to act on behalf of the minor. The undertutor can be thought of like a” watchdog.”

An undertutor is a separate and distinct role from the tutor. An undertutor is not a successor tutor (“backup tutor”). This means, if the tutor passes away, is removed from the position, or no longer able to serve, the undertutor does not automatically become the tutor.

How Parents Appoint a Tutor

Parents can name a tutor and an undertutor for their minor child in a valid will. This is the most common method for parents to appoint someone that they know and trust to be their child’s caregiver, in case anything happens to the parents.

Parents should take caution when attempting to use online forms to create a will and name their child’s tutor and undertutor. The online forms may be sufficient for other states, but Louisiana law is different and has specific requirements. For example, Louisiana law requires specific language (such as an attestation clause) and specific signing requirements (such as a formal signing before a witness and two disinterested witnesses). What works for other states, often fails to be valid in Louisiana.  Families should seek the benefits of legal counsel to obtain documents that are in compliance with the law, so that their child is protected during their time of need.

When Does Tutorship Arise?

Tutorship generally arises in the following circumstances:

1) Death of a Parent

When one parent dies, the surviving parent is typically the natural tutor of the minor child. No court procedure or legal document is required for this to occur. In this circumstance, no undertutor is appointed.

2) Death of Both Parents

If both parents die, the court will look to the last surviving parent’s will to determine who should serve as tutor and undertutor. Louisiana law gives effect to the surviving parent’s choices. This means that if each parent, in their respective wills, names different tutors, the court will follow the appointment made by the parent who dies second. The appointment made by the first parent to die does not control.

If neither parent names a tutor, the court will select qualified relatives to serve as tutor and undertutor. The court will look to relatives such as grandparents, aunts, and uncles, or other close family member. If no suitable relative is available, the court may appoint a close friend. In rare cases where there is no one qualified to serve as a tutor, the court will appoint a government agency.

3) Divorce

By court confirmation, the parent awarded custody may become the natural tutor.

4) Absence, Interdiction, or Incapacity of Parents

If it is shown that a parent does not have the legal or mental capacity to exercise parental authority and manage the child’s assets and personal interests, the court may appoint a tutor for the minor child.

When Tutorship Ends

Tutorship ends when the child reaches 18 years of age or becomes emancipated at an earlier age. A tutorship may also terminate if the court removes a tutor for misconduct or incapacity, or if the tutor resigns. (In these situations, the court will appoint a successor tutor to ensure the child remains protected until age 18.)

When a tutorship ends, a tutor is required to provide a final accounting detailing the minor’s assets and the administration of those assets during the tutorship.

When a Child with Special Needs or a Disability Still Needs Legal Oversight Beyond Age 18

When a person turns 18, they are considered a legal adult. At that point, parents and tutors no longer have the legal authority to make decisions on their behalf. However, for individuals with developmental or intellectual disabilities, it may not be in their best interests for tutorship to terminate at age 18, as they may continue to need assistance in managing personal, medical, educational, and financial decisions. For these individuals, there are several options in Louisiana:

(1) Continuing Tutorship

(2) Supported Decision-Making Agreement, and

(3) Interdiction.  

Option 1: Continuing Tutorship

In Louisiana, there is a special legal option called a Continuing Tutorship. This legal status allows parents, as well as existing tutors, to maintain their authority over the individual, even after they turn 18. Through a Continuing Tutorship, parents and tutors may continue to have access to the individual’s medical, educational, and financial records, make important decisions on their behalf, and manage their legal matters, ensuring continued protection and support beyond age 18.

There are strict deadlines for applying for a Continuing Tutorship. Parents and existing tutors must file the application when the child is between the ages of 15 and 18. Once the child turns 18, it is too late to establish a Continuing Tutorship, and this option is no longer available.

To qualify, the child must have two-thirds of the intellectual ability of other people their age. This means the child demonstrates significantly reduced cognitive, developmental, or daily living skills. This is usually shown by providing school records and testing results.

The application process requires filing a petition with the court. However, the petition does not lead to a full trial proceeding. Parents should work closely with an attorney to ensure the petition, supporting evidence, and procedural requirements are handled properly.

Option 2: Supported Decision-Making Agreement

A Supported Decision-Making Agreement is a legal document that lets a person with a disability choose people they trust to help them make decisions – without taking away their legal right as an adult to make decisions for themselves. This is a newer option under Louisiana law.  

A Supported Decision-Making Agreement is different from a Continuing Tutorship. Under a Supported Decision-Making Agreement, the person with a disability is still the one making decisions – they just have support. The person picks one or more supporters who can help them with choices about medical care, money, education, housing, etc. These supporters may have access to financial, medical, and education records in order to help explain options and give advice. However, supporters do not have legal control.

The person with the disability keeps full legal control over their own life and their decision-making authority is not transferred to anyone. The Supported Decision-Making Agreement is a less restrictive option than a Continuing Tutorship. It supports independence and self-determination. It is a good choice for someone with a mild to moderate intellectual or developmental disability who may still want help in understanding important choices.

A Supported Decision-Making Agreement can be used as part of the transition to adulthood after turning 18. It does not require a court process, and it can be changed or canceled at any time.

However, if the person has a severe intellectual disability and cannot safely make decisions, even with help, then a more serious legal step may be needed. In that case, a parent or guardian may consider an Interdiction.

Option 3: Interdiction

Interdiction is a legal process where the court takes away some or all of a person’s legal rights and gives them to someone else. It is a last resort. It requires a full summary hearing, which can include witness testimony, evidence, and cross-examination. It can be expensive, time-consuming, costly, and emotionally stressful for families. Interdiction should only be used when there is no better option.

CAUTION: Why Powers of Attorney May Not Be Appropriate for Individuals with Intellectual or Developmental Disabilities

Parents sometimes try to avoid an interdiction by having their adult child sign a Power of Attorney, allowing the parent to make decisions or act on the adult child’s behalf.  While this may seem like a simple solution, it is often legally ineffective for individuals with intellectual or developmental disabilities.  

Under Louisiana law, a person may grant a Power of Attorney only if they possess sufficient legal and mental capacity. Mental capacity exists only when the person understands the purpose, consequences, risks and benefits, and alternatives to the decision they are making. Although the law recognizes that decisions regarding routine, low-risk decisions may require less understanding, decisions that are important or involve long-term consequences, such as medical treatment, financial or contractual matters, living arrangements, and any restriction of rights require a much higher level of comprehension. If an adult with an intellectual or developmental disability cannot fully understand these long-term or significant decisions, they cannot validly sign a Power of Attorney. Any Power of Attorney signed without the required capacity may be invalid and provide no legal protection for the individual or their family.