Tutorship/ Emancipation/ Curatorship Flashcards
What is emancipation?
It relieves a child of all or part of his minority.
True or False:
There are three kinds of emancipation under La law, judicial emancipation, emancipation by marriage, and limited emancipation by mutual agreement.
False, the third type is limited emancipation by authentic act, not “mutual agreement”
What are the three types of emancipation?
Judicial: for good cause court can emancipate 16 or older
Marriage: fully emancipated when married, but termination of marriage does not effect
Limited by authentic act: minor and parents or tutor of m inor can execute an authentic act of limited emancipation when m inor is 16 or older. Can give capactiy to make juridical acts as stated in the limited emancipation, other effects of minority continue
List different types of tutorship established by civil code.
Tutorship by Nature
Tutorship by Will
Tutorship by effect of law
Tutorship by appointment of judge
Discuss legal requirements concerning appointments and duties of a curator.
Appointment: appointed by court to manage person an property of interdict in accordance with the interdict’s limitation. There is a preferential list of persons to be appointed, and spouses are first, then children, then designation, then parents if no spouse or children, or no designation.
Qualification: 18 or older, not an interdict themself, and resident of state.
Must take oath to faithfully discharge the duties and prepare detailed descriptive list setting forth fair market value of interdicts property.
Duties: that of a fiduciary who is empowered to act on the interdicts behalf and must act in the best interest of his property. Duty of care and loyalty. May be responsible for damages from acts/ omissions. If performing without pay, gross negligence.
What action can curator file to protect interdicts interest in property?
May file a petitory action, which is a real action brought by one who claims ownerhisp of an immovable but who is not in possession.
Discuss procedure and requirements for removing a curator
A person or the court can seek to remove a curator for good cause. Person must peition court for removal on a clear showing that the curator is not performing her court appointed duties. Court will remove curator and appoint successor if deemed to be in best interest of interdict. Factors to determine this: whether curator has, with gross negligence, misapplied the interdicts property; whether failed to render an account required by law; whether failed to obey an order, whether proof of gross misconduct or mismanagement ; whether incapable of performing duties, or whether has been abuse of interdict, failure to educate him, or provide as much independance as possible.
Can a curator be personally responsible lfor payment of attorney fees relating to any proceeding to have her removed?
The court may award costs and attorney fees or any part of them against any party as it sees fair/ reasonable. No fees may be awarded to a petitioner when a judgment is granted against them or is dismissed on the merits. (judgment for the curator). This applies to all proceedings related to interdiction, even after judgment rendered.
What are the types of interdiction.
Full interdiction (when person due to infirmity is unable consistently to make reasoned decisions regarding care of his person and property or communicate those decisions) Limited: when person is unable consistently to make reasoned decisions regarding care of person OR property or any aspect of either, and communicate them.
Can property be conveyed by person who should be but hasn’t yet been interdicted?
NOOOOO (think of contract requirements, capacity) must be interdicted at time of transfer for it to be valid, can’t make own mandate, etc. if in need of interdiction
