Powers of Attorney, Power of Attorney Abuse & Interdictions (Guardianships)
Power of Attorney Abuse & Interdictions (Guardianships)
Powers of Attorney (Mandates)
In estate planning and long-term care planning, having a valid and comprehensive Power of Attorney is critical. In Louisiana, a Power of Attorney is called a Mandate. It is a legal contract that gives another person or persons (called the Agent) the ability to handle your affairs. It allows them to make financial decisions, medical decisions, or both. Moreover, you can grant the power to handle financial matters to one person, while granting the power to make your medical decisions to another person. Generally, you are not giving up any rights by signing a Power of Attorney. The contract can usually be revoked. There is no “Durable Power of Attorney” in Louisiana, as, unless otherwise stated, all contracts of Mandate survive incapacity. They become invalid upon death.
Internet legal forms are not the way to go with any legal document, and a Power of Attorney is no exception. Louisiana’s law is different than every other state’s laws. Do not rely on a notary’s form. Increasingly, Louisiana courts are finding legal documents prepared by non-lawyers (including notaries) and out-of-state lawyers null and void – after it’s too late to do anything about it. For example, after a person becomes incapacitated (e.g., after a stroke), they are no longer legally able to sign a Power of Attorney. So, if the form Power of Attorney you relied on is missing important language or is worded incorrectly because it was not tailored to your specific situation, it cannot be changed. That could result in expensive and protracted interdiction proceedings and unnecessary family strife.
Moreover, those few dollars you may have saved by using a canned document could prohibit meaningful estate planning, and cause the family to incur tens of thousands of dollars in unnecessary nursing home or medical costs. It happens all the time.
It is important that you choose your agent wisely. However, if your agent breaches his duites against you, then Louisiana law provides substantial remedies.
Power of Attorney Abuse
Under Louisiana power of attorney law, any interested person may file a lawsuit to stop an agent from abusing his powers granted under a power of attorney. The law gives the judge much leeway in stepping in and stopping the abuse. Among other remedies, the Court can issue injunctions, restraining orders, and can hold the agent responsible for the attorneys fees.
If there is not a valid Power of Attorney and decisions have to be made after a person becomes incapacitated, Louisiana law provides for a proceeding called an Interdiction. In an interdiction proceeding, the Court is called upon to decide who should be placed in charge of the affairs of another. It is only for those situations where the person is unable to consistently make reasoned decisions concerning the care of his or her person (e.g., medical) or property. Unless the person had previously designated otherwise, the Court will usually choose the spouse or a child. With a power of attorney, the person generally retains the right to make decisions; however, a judgment of interdiction terminates those rights. Because the law of interdictions is so severe (sometimes called a civil death penalty), it is procedurally very complicated and can be quite expensive. Accordingly, one can usually avoid such expenses and stress by taking the time to meet with a Louisiana power of attorney lawyer and spell our his or her wishes in advance.
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