Jankower.com - Power of Attorney

What can I do to protect myself in the event I become unable to manage my affairs?

Powers of Attorney

An overlooked part of sensible estate planning

An important part of prudent estate planning is the power of attorney. A power of attorney is a legal document designed to allow a person (the "principal") to designate another individual as his or her agent. The agent is empowered with legal authority to act on behalf of the principal with regard to a variety of different types of actions.

The extent of the agent's authority is controlled by the language contained in the power of attorney. For those actions allowed under the power of attorney, the actions of the agent on behalf of the principal are deemed legally to be binding and enforceable as though the principal had performed them himself.

A power of attorney can be limited in scope, or it can provide general powers and authority. It can be made effective immediately or at some point in the future. Powers that are commonly granted to an agent in a power of attorney include the right to make financial and business decisions for the principal. Health care decisions can also be delegated to an agent in a power of attorney.

In Louisiana, a properly executed power of attorney is effective as a matter of law regardless of whether the principal subsequently becomes incapacitated. However, without a power of attorney, if a person becomes disabled, that person may have to be placed under interdiction in order that others can be vested with authority to act on behalf of the disabled person.

Interdiction is a formal legal proceeding instituted to have a person declared incompetent and incapable of handling his or her affairs. Interdiction proceedings require the filing of a lawsuit naming the person to be interdicted as a defendant. It may literally require that a family member sue his or her own family member, including a spouse or child. The lawsuit must be personally served upon the person to be interdicted, and that person must be represented by legal counsel. A hearing must take place in court and it must be proven by "clear and convincing evidence" that the person to be interdicted is unable to handle and manage his or her own affairs. This is a higher burden of proof than that applicable in ordinary civil proceedings. Once a judgment ordering a person to be placed under interdiction is rendered, the court will appoint a "curator" to act on behalf of the interdicted individual. The curator will be required to obtain prior court authority to take many actions for an interdicted person.

Interdiction proceedings can be time-consuming and expensive. There are numerous formalities that must be followed before a judgment declaring a person to be interdicted can be obtained. Once the judgment has been obtained, the curator will still need prior court authority to take many actions on behalf of the disabled person, many of which may only be taken following the publication of notices in the local newspaper of the action to be taken.

These time-consuming formalities and legal expenses may be avoided with the execution of a properly and carefully drafted durable power of attorney.