POWER OF ATTORNEY

Whether you have a will-centered estate plan or a trust-centered estate plan, a proper estate plan should include (at a minimum) two additional documents: (1) a   Durable Power of Attorney; and (2) a Health Care Directive.

A properly drafted, Power of Attorney (sometimes referred to as a Mandate or Procuration in Louisiana) allows you to appoint another person of your choosing to make financial and health care decisions and to manage your affairs in the event you become incapacitated.  The person you appoint is referred to as an agent or attorney-in-fact.

If you become incapacitated before executing a valid power of attorney, a court proceeding referred to as an Interdiction in Louisiana will be required to declare you legally incompetent, at which time the court will designate a curator to manage your affairs, who could be anyone.  Interdiction contests are often very contentious and expensive.

A Durable Power of Attorney just means that the Power of Attorney remains effective in the event you become incapacitated.  If a Power of Attorney is not durable, it terminates when you lose capacity, which could defeat the purpose of the Power of Attorney – to ensure someone can make decisions for you if you are unable to do so.

A Power of Attorney is essentially a delegation of authority to another person.  If you think about all the rights and powers that you possess as a person, each one of these rights and powers can be separately delegated to another person. Imagine all your individual powers as an American citizen as a bundle of sticks.  If every stick is a separate power, you could have 1 million sticks in your bundle. So….there could be 1 million types of powers of attorney.

That being said, we typically group powers of attorney into two different categories: (1) Financial Powers of Attorney, and (2) Medical (Healthcare) Powers of Attorney.  Why?  Because someone you trust with your financial decisions may not have the best bedside manner.  Conversely, someone with a good beside manner that you trust with making healthcare decisions for you may not have the best financial sense.  It may very well be that you trust the same person to make both financial and medical decisions for you, but not always.

A Financial Power of Attorney is a legal document that allows you to appoint someone that you know and trust to make financial decisions for you.  Financial decisions typically related to your property or assets, and may include the power to access accounts, pay expenses, buy, sell, exchange, enter into legally binding contracts, create trusts, make donations, etc.

A Limited Power of Attorney is a legal document that grants narrow, specific powers to your Agent, such the power to sell a single parcel of real estate (immovable property) for a stated price, or for a limited duration of time.  Limited Powers of Attorney can be very useful, especially for large groups who wish to authorize one person to transact business on their behalf.

The importance of a Power of Attorney in planning for long-term care or nursing home expenses cannot be over-stated. Why? A power of attorney in Louisiana does not automatically include certain powers. This is by design from a public policy perspective.

If you think about it, a Power of Attorney is like a blank check.  If you gave someone a blank check, they could clean out your bank account.  If you give someone a Power of Attorney, they can not only clean out your bank account, but can sell your house, liquidate all your investments, and then move to Tahiti.

Under Louisiana law, a Power of Attorney must specifically delegate certain powers in order to validly delegate those powers to your Agent.  These may include the power to make donations, to establish asset protection trusts, to engage in self-dealing transactions in order to protect your estate from the potentially crushing costs of long-term care.

In fact, it happens quite frequently that an Agent is precluded from protecting assets because of defective Power of Attorney.  Unfortunately, it’s usually too late to fix the problem with a more comprehensive Power of Attorney because the problem is usually discovered after the person has lost capacity and can no longer execute a new Power of Attorney.

For this reason, it is necessary to engage a skilled estate planning lawyer to regularly review existing estate planning documents, including powers of attorney, to ensure the documents will serve their intended purpose when needed.

A Power of Attorney (or Mandate) is a contract which is governed by the law of general obligations in Louisiana, unless otherwise specified in the Mandate. Louisiana Civil Code Art. 1927 provides that a contract requires an offer and acceptance. So a trust Mandate (Power of Attorney) must be entered into by the two parties. Louisiana Civil Code 2993 prescribes the form of the Mandate and states that no particular form in required. However, if the Power of Attorney (Mandate) authorizes an action that requires a particular form, then the Power of Attorney must be in that form.

For example, the sale of real estate (immovable property) must be in the form of an authentic act (a legal act performed in the presence of a notary and two witnesses).  If the Power of Attorney authorizes the sale of real estate, the Power of Attorney must be in the executed by the Principal and the Agent in the form of an authentic act.  Otherwise, the Agent can take no action or sign any documents that require an authentic form, including donations.

Inexpensive computer-generated forms are readily available from various websites and even box stores.  Use of any computer-generated form is quite dangerous.  CLICK HERE for an example of the perils of using computer generated forms in Louisiana.

As a practical matter, a Power of Attorney usually sits on a shelf until you need it.  But when you need it, you REALLY need a it, so it’s critical that your Power of Attorney be valid for all intents and purposes.  When a Power of Attorney is defective, it usually is not discovered until it’s too to change it (after a person has lost capacity).

For this reason, it is highly recommended that a skilled estate planning attorney prepare your Power of Attorney.

If your situation is urgent, follow the link below for a Quickstart, then contact our office.  We will deliver your Power of Attorney within one (1) business day.

• Power of Attorney Quickstart