Planning for Absence or Incapacitation
Life is full of uncertainties. Every adult, married or single, of any age or stage of life, should have mandates in place. Because incapacitating accidents and illness are not predictable and can happen without notice, it is important to choose the right agent, prepare a clear and concise mandate and also to understand the ways that a mandate can be terminated.
Anytime you can’t be in two places at once, you can run into a situation where you need a mandate (called a Power of Attorney in other states). If you travel often for work or are going to be having a medical procedure with a lengthy recovery, you need to think about who should make decisions for you while you cannot.
There are also times when we have unexpected health issues arise. While not pleasant to contemplate, one day you may become incapacitated and unable to make sound decisions about your rights, property and health. Having a plan in place avoids confusion and a costly court process called interdiction.
The good news is that taking a little time now to think about incapacitation means you won’t have to worry about it later. Having a plan in place that allows a trusted agent to act on your behalf – be it your spouse, partner, child, friend or neighbor – means avoiding costly court proceedings necessary to gain access to your assets and getting court orders to make medical decisions.
General and Financial Power Of Attorney
Your General Mandate is an authoritative document that allows the individual you name as your agent to step in and act on your behalf in all respects including, pay your bills, file your taxes, buy/sell real estate, hire professionals, maintain your property and continue to handle your personal affairs.
A mandate is usually durable – meaning that it continues until death even in the event you are capacitated. Besides some specific laws concerning burial, a Will or Trust takes over after death, meaning your agent cannot continue to act for you after your passing.
Not all Powers of Attorney are the same. While you may grant your agent general authority to act, certain actions require your express written consent before your agent may undertake them on your behalf. Certain powers must be explicitly stated, for example, “the authority to alienate, acquire, encumber, or lease a thing must be given expressly.” Your agent cannot donate property (whether a gift to a person or to a charity) or contract with themselves (called self-dealing) without explicit mention in your power of attorney.
Your estate planning Field Law attorney will be able to review options and tailor your mandate to share only the powers you want or share them all with your agent.
Louisiana law states “all persons have the fundamental right to control the decisions relating to their own medical care.” Planning for your healthcare is the important process of discussing values and goals of care, executing legal documents such as Advance Directives, and appointing an agent to speak for you when you are unable to speak for yourself.
Your doctor’s office will ask if you have Advance Directives, and, if you do, they will put a copy in your medical chart. This way you know your wishes must be followed even if you are transferred for treatment to another facility.
Both a Living Will Declaration and a Healthcare Mandate are considered Advance Directives.
Living Will Declaration
In Louisiana, your written directions for end of life care are called your Living Will. This is sometimes called a Living Will Declaration or Living Declaration. It is used if you are in a continual profound comatose state or are terminally ill. It also only affects life-sustaining procedures – not routine medical procedures.
If you name a healthcare agent, you will also have a separate document, a Healthcare Mandate (Power of Attorney), which authorizes your agent to enforce your healthcare directions. The mandate is broader than the Living Will and allows you to appoint an agent with the authority to make important medical decisions when you are unable to do so yourself.
A Healthcare Mandate is a legal document where you authorize another person – your healthcare agent – to make healthcare decisions in the event you become temporarily or permanently unable to make those decisions yourself. Your agent can make decisions concerning medication, treatment, surgery, your health insurance and HSA account. It is also often used by your agent to access HIPAA protected information.
Interdiction without a Power of Attorney
If you don’t have a power of attorney and become incapacitated or are unable to take care of yourself or your financial affairs, and you have not appointed an agent through a power of attorney to take care of those things for you, an exhausting interdiction proceeding must be filed in court, where the costly proceedings are public record. The purpose of the interdiction process is to have the judge declare you incompetent and appoint someone to handle your affairs for you, called your curator.
This procedure can be both time-consuming and costly, but it can very easily be avoided by executing a power of attorney while you are still healthy and have the capacity to do so.
Powers of Attorney can be springing – meaning they don’t take effect until you are incapacitated – so you can get a power of attorney now to ensure you don’t have to go through interdiction later.
Contact Us For A Free Initial Consultation
Field Law is based in Baton Rouge, but we serve clients throughout Louisiana. We are also pleased to work with clients outside the state on matters related to Louisiana estate law and successions. To arrange a free consultation, call us at 225-341-8221, or send us an email.