Misconceptions About Power of Attorney Documents in Louisiana

There are many misconceptions about the Power of Attorney Documents, which is why many people do not utilize this valuable estate planning tool. Each state has its own civil codes regarding Power of Attorney documents and their validity so it is always critical to consult with an estate planning attorney in your state of residence before trusting that your documents are valid and complete. Here are some common misconceptions about Louisiana Power of Attorney Documents and the truths that an experienced Baton Rouge estate planning lawyer can help you understand.

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Misconceptions About Power of Attorney in Louisiana

  1. You Can Find a Power of Attorney Document on the Internet
    Just because you can find something on the internet doesn’t mean you should. Power of Attorney documents, just like any other type of legal document, should be written to meet your specific needs and circumstance. Fill-in-the-blank legal documents are often ambiguous and leave a lot of room for interpretation which is not something you want in a legally binding document. With internet documents, you also run the risk of that document not actually being legally binding in your state or without meeting certain specifications.
  2. A Power of Attorney Grants the Agent the Right to Do What They Please with Your Estate
    In Louisiana, a power of attorney means that you are allowed to specify an agent of your choosing. They have the power to control certain aspects of your estate or carry out certain actions but it doesn’t mean they have the right to do whatever they want. Agents acting under Power of Attorney have an overriding obligation, commonly known as a fiduciary obligation, to act in the best interest of the party the principal party (you). Note: It is still critical to choose someone you trust to be your agent and to hold the fiduciary obligation as a backup and not the first line of defense
  3. There is One Standard Power of Attorney
    Though the principal determines the type and scope of powers granted in a Power of Attorney document it is still critical to have an experienced Estate Planning Attorney draft these documents to ensure that your wishes are carried out.

    That being said, there are two main categories of Power of Attorney Documents: General and Limited.

    - Type 1: A General Power of Attorney which governs all powers covered by a Power of Attorney (like buying or selling property or otherwise managing one’s assets). However, the specific language of a power granted will depend on the document. The powers in a Power of Attorney are specific especially when custom drafted (which they ideally should be). The agent needs to check the Power of Attorney document to see if the necessary powers have been granted.

    - Type 2: A Limited or Special Power of Attorney which refers to less than all powers. For example, a Power of Attorney could be drafted which only grants the power to conduct a real estate sale for the title of one property.

  4. A Power of Attorney Document is Terminated Upon Incapacitation of the Principal
    While this is true in most states, this is not true in Louisiana. In Louisiana, a Power of Attorney document remains in effect should the principal become incapacitated or disabled unless the principal states otherwise in the Power of Attorney document. (LA civil code article 3026)

    This and other slight differences in a state’s civil code are one of the many reasons it is unwise to trust legal documents printed from the internet. It is always safest and wisest to have an experienced attorney in your state compose legal documents to ensure they are valid and complete.
  5. Power of Attorney Moves to the Agent the Moment the Document is Signed
    While this is true in the event that a specific start date/event is not specified in the Power of Attorney documents, you may also choose to utilize what is known as a ‘springing’ or ‘conditional’ Power of Attorney.

    If you choose to use a conditional Power of Attorney then you must expressly state under what circumstance/after what event you would like the Power of Attorney to ‘spring’ into effect. Typically, these are used when you would only like to give an agent Power of Attorney in the event of your own incapacitation or disability. 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.

Requirements for Power of Attorney

If you decide to create a power of attorney, be sure to fulfill the requirements to ensure that it is valid. Louisiana requires that all of your documents are notarized. Even copies of the power of attorney must be certified through the original document. It does not matter if your wishes will be executed in Louisiana or out-of-state. Your agent must keep the original, notarized power of attorney and must present it when conducting business on behalf of the estate.

Contact a Baton Rouge Estate Planning Lawyer at Grand Law Firm

To learn more about Power of Attorney in Louisiana, reach out to Grand Law Firm. We have over two decades of experience and are ready to answer your questions! We have offices in Baton Rouge and Metairie and offer free case evaluations.

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