What is a Power of Attorney?

At some point, you may find it difficult or inconvenient to conduct some personal business that may easily be handled by a spouse, relative or trusted friend. For example, you may be temporarily ill and confined to home, or you may be in a hospital and unable to leave, or be without good transportation. Bank withdrawals and deposits, signing of deeds for sale of real estate, and other business affairs, all may be handled for you by another person if you have a power of attorney.

A power of attorney (also called a "mandate" or a "procuration") is a written statement that allows one person (the "principal") to give to another person (the "agent," or the "mandatary") certain rights to handle a person's money, real estate, personal property and other affairs or interests. It gives the agent the legal authority to make binding decisions on behalf of the principal. The principal does not lose the power to continue to make decisions even though a power of attorney has been given.

A person must be mentally competent to authorize a power of attorney. As the principal, one can provide to an agent any instructions, guidelines, or limitations that one feels appropriate or desirable. Specific language must be included in a power of attorney document in Louisiana to allow the designated agent to perform certain acts, such as to sell or to buy real estate, to grant a mortgage and to borrow money.

Duration or Durability:

In the power of attorney document, a principal can provide a date or the occurrence of an event even with an unknown date on which the powers granted to the agent will terminate. Without an express termination date or event, a power of attorney will terminate upon:

1. (1) the Death of the principal or of the agent;

2. (2) the Interdiction (guardianship) of the principal or the agent;

Unlike some other states, a Louisiana a power of attorney is still good, still valid and effective, should the principal become incapacitated or disabled, unless the principal stipulates differently in the power of attorney document. As stated in the Louisiana Civil Code at Article 3026:

"In the absence of contrary agreement, neither the contract nor the authority of the mandatary [the agent] is terminated by the principal's incapacity, disability, or other condition that makes an express revocation of the mandate [the power of attorney] impossible or impractical."

Thus, in Louisiana a power of attorney is durable unless you expressly provide that you do not want it to be. And, this feature is applicable to all powers of attorney, including those given for health care.

This "endurance," or durability until death, feature can be especially useful, as it would prevent the need of your family to institute costly court proceedings to appoint a curator (guardian) with legal power to care for you should you become incapacitated. As a practical matter, most attorneys advise the use of the durability feature of powers of attorney rather than a clause "turning off" the power should you become physically or mentally unable to care for your person or your property.

Delayed Effective Date:

A power of attorney that has a delayed effective date can be referred to as a "springing" power of attorney. In the Louisiana statutes, it is called a conditional power of attorney. This type of power of attorney must expressly state that it is to become effective only upon the disability of the principal. Louisiana law requires that when and if the disability of the principal occurs, it must be established by an affidavit stating that due to an infirmity, the principal is unable to consistently make or to communicate reasoned decisions regarding the care of the principal's person or his or her property. Two licensed physicians must sign the affidavit. If the power of attorney so provides, the affidavit may be signed by one physician and the person appointed as agent.

Designating an Agent

One must be certain that the person granted these powers, be they in a power of attorney limited to health care or a general power of attorney covering your property and/or business affairs, is an individual in whom you have the utmost confidence and thus trust to use the power(s) as you would direct them to do were you able to do so yourself.

Conclusion

Powers of attorney are created using specific language, and you are better advised to seek the advice of an attorney to create one, though once it is set up, a lawyer is not needed to exercise a power of attorney. Care should be taken to ensure you make the document as clear and unambiguous as possible, and as specific or express as possible, in order to achieve your purposes or objectives and to protect you, your rights and your property.

Originally published in 2002 by Paul J. Breaux

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Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.