Louisiana Estate Planning and Power of Attorney
Having a successful estate plan means setting up a power of attorney - here’s everything you should know.
If you’re here, then you’re ready to do some estate planning.
You might just starting the process, trying to figure out exactly what kind of estate plan you need.
Or maybe you’re making necessary updates to you already existing estate plan as you enter a new life stage.
Regardless of what you already have in place (or not), if you don’t already have a power of attorney set up, then that should be your next step.
This is an often overlooked and misunderstood document that could save you and your loved ones a lot of stress when life serves up it’s favorite dish: the unexpected.
A quite note before we get started: a power of attorney document is not exclusively for estate planning. However, a successful estate plan always includes a power of attorney.
We’ll get into some non-estate planning situations in which a power of attorney is super important.
As always, this info is intended for general information purposes. Should you have specific questions or need advice on your own situation, then it’s best that you reach out to a licensed legal professional in your state!
“Among the 795,909 Americans from the 150 included studies, we found that ... only 33.4 percent had designated a health care power of attorney.”
What is a power of attorney?
A power of attorney grants a trusted person the authority to make legally binding decisions on your behalf.
In legal terms: A power of attorney is a legal document where one individual, the principal, grants another person, the agent or attorney-in-fact, the authority to act on their behalf in various legal, financial, or personal matters.
The document specifies the powers delegated by the principal to the agent, it outlines the scope of authority and responsibilities granted from the principal to the agent.
Let’s break that down:
Principal: whoever writes the power of attorney.
Agent: The person who is getting the authority, also known as the attorney-in-fact.
Power of Attorney: The document itself which establishes who is in charge, when it goes into effect, how long it lasts, and when it ends.
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Tailored to Louisiana's specific legal requirements, it includes provisions for making critical medical decisions and appointing witnesses.
The Brass Tacks of Louisiana Power of Attorneys
Typically, a Power of Attorney is put in place when one person needs to take care of the affairs of another - who is unable to do so.
Granting this authority can mean that agent is given full legal permission to take care of various matters for the principal including:
medical and healthcare wishes
financial matters
various legal situations
personal matters like real estate sales
This means that powers of attorney are not exclusively for estate planning.
But, this document plays a critical role in estate planning.
In terms of estate planning, having a durable power of attorney is important to establish.
This specific type of power of attorney protects you, your estate, and your loved ones in the event that you become incapacitated or unable to make decisions for yourself.
It’s important to note that other types of power of attorney can be terminated if the principal becomes incapacitated and others apply strictly to a single event or procedure.
We’ll get into that a little later.
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Estate Planning and Durable Power of Attorney
A durable power of attorney gives the agent the power to act as the principal should they become incapacitated.
Because a durable power of attorney gives power in the event of incapacitation, it is arguably the most important document for anyone starting their estate plan.
Generally, this is what you’d want in place, as it can act as a safety net for the most unexpected of circumstances.
A power of attorney is vital for aging adults entering hospice or other serious medical treatments.
But, a power of attorney is also a crucial tool in preparing for the unknown.
Should you become incapacitated, a power of attorney will grant your trusted loved one (officially called your “agent”) with the power to make decisions regarding your finances, property, and healthcare.
By establishing this trusted agent with a durable power of attorney, you’ve set yourself up for success with someone who understands your wishes and can carry them out for you.
If you don’t have a power of attorney set up in the event of an unexpected emergency or incapacitation, granting someone that authority after the fact can be a complicated legal maneuver.
By having a power of attorney, you can avoid the costly and time consuming process of establishing a court-approved guardian or conservatorship.
Which is what your family would have to do in order to put someone in charge after you are no longer able to represent yourself.
Louisiana recognizes the following Powers of attorney:
General Power of Attorney: This grants broad authority to the agent to handle various financial and legal matters on behalf of the principal.
Special or Limited Power of Attorney: This grants specific powers to the agent for particular tasks or a limited period.
Healthcare Power of Attorney: This authorizes the agent to make healthcare decisions on behalf of the principal if the principal becomes unable to do so.
Durable Power of Attorney: This remains effective even if the principal becomes incapacitated or unable to make decisions.
““Only 32% of Americans have [an estate plan] ... a decline from 2023 and the first decrease in estate planning rates since 2020.””
Why a Durable Power of Attorney is important when it comes to estate planning:
If you know nothing else about powers of attorney as it pertains to Louisiana estate planning, remember this:
A durable power of attorney remains in effect if you should become incapacitated.
If the power of attorney is not durable, it might be terminated if you become unable to make decisions for yourself
I highly recommend creating a durable power of attorney, as it is the classification of POA that will still remain in effect in the event of incapacitation.
There can be various factors that will dictate which power of attorney you need, so it’s important to reach out to a licensed attorney when considering powers of attorney and estate planning.
Estate Planning has never been simpler!
Louisiana Living Will Template
$39.00 $49.00
This user-friendly template includes step-by-step instructions and a straightforward declaration of living will template that’s easy to complete.
Tailored to Louisiana's specific legal requirements, it includes provisions for making critical medical decisions and appointing witnesses.
In terms of Louisiana estate planning, you might need more than one power of attorney:
Think about estate planning powers of attorney in terms of two categories:
healthcare power of attorney
financial power of attorney
Estate planning tip: it’s typically best practice to keep finances and healthcare separate when it comes to power of attorney.
Just think about it like this: should you need a power of attorney - you don't necessarily want healthcare professionals to see financial stuff, and you don't necessarily want financial folks to see healthcare stuff.
By drawing up different documents, you keep these worlds separate, but equally informed.
You can have the same agent named in both documents, or you can name separate agents in each healthcare and financial powers of attorney (HPOA and FPOA, respectively.)
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Who Should be the Agent in a Power of Attorney?
If you rush an estate plan, you might not be considering who would be the best option to take care of what needs to get done.
When it comes to your power of attorney, make sure you consider the authority that will be granted to the individual, in your place.
Ask yourself the following questions when determining who will act as your agent:
do you have a loved one who’s experienced in financial matters?
is there someone is better suited to be your healthcare advocate?
You don’t have to name the same person to take care of all aspects of your estate plan.
It’s common to appoint your spouse or partner to act on your behalf. But, it’s important to consider the specific scenarios in which the power of attorney will be applied when drawing up these documents.
If you are an aging adult or have a partner who isn’t well versed in financial matters or medical matters - then it might be good to consider other trusted loved ones.
As always, be sure to have frank and open conversations with your trusted network of loved ones.
Make sure your estate planning team, the ones who will be taking care of things when you are unable to, is fully aware and prepared to take on the responsibility.
Remember, without a power of attorney, someone would have to go through the courts to apply for guardianship.
In Louisiana, this is called an interdiction proceeding and the person named your guardian is called a curator.
A power of attorney allows you to give the power to handle your healthcare (or finances) to someone else so that you don’t have to go through that interdiction proceeding.
It’s important to think about this stuff before an emergency happens, that way you can rationally and thoroughly consider your options when appointing someone to this post.
Louisiana Living Will Template
$39.00 $49.00
This user-friendly template includes step-by-step instructions and a straightforward declaration of living will template that’s easy to complete.
Tailored to Louisiana's specific legal requirements, it includes provisions for making critical medical decisions and appointing witnesses.
Healthcare Power of Attorney
A power of attorney is a document that gives someone the power to act on your behalf , when you are unable to do so.
By establishing a healthcare power of attorney (HPOA), you have a trusted (and legally recognized) advocate (or agent) communicating your wishes and making decisions with your healthcare providers.
Generally speaking, a healthcare power of attorney names the agent and maybe gets into more specific healthcare needs.
If you have a long list of specifications that you’d like to be adhered to in the event you are unable to advocate for yourself, then I strongly suggest working with a licensed estate planning lawyer to draw up those documents.
However, if you want to generally cover your basis you should consider having the following in our Louisiana estate plan:
Declaration of Living Will: a simple advance direction that specific if you want artificial hydration or nutrition should you become incapacitated.
Healthcare Power of Attorney: names a specific agent to act on your behalf and advocate for your healthcare wishes when you are unable to do so. Make sure this is a durable power of attorney, so that it remains in effect should you become incapacitated.
DNR: If you are certain that you do not want particular life-saving measures to be performed in emergency and otherwise end-of-life healthcare scenarios, then having a DNR would be a good move to have in place.
When creating a thorough and helpful estate plan, it’s important to have both a living will and a healthcare power of attorney.
Doing so can make it easier for your appointed health care proxy to make the right decisions.
Keep this in mind:
A living will is a document that outlines your wishes concerning basic end of life care.
While a living will states your simple medical wishes, it is the power of attorney document that gives the trusted agent authority to carry out your wishes.
By establishing both documents, you create a legally sound plan for your wishes to be carried out when you are unable to advocate for yourself.
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Financial Power of Attorney
In Louisiana estate planning, a financial power of attorney gives a trusted advocate the power to handle your financial affairs should you be no longer able to do so.
A financial power of attorney can give your attorney-in-fact (the agent) the power to:
Purchase or sell property
Make investment decisions
Pay bills, taxes, and debts
Manage assets and bank accounts
Other specified financial matters
This person doesn’t have to be the same person as your healthcare power of attorney. In some cases, it might be best to name a person well-versed in financial matters pertaining to your specific situation.
In estate planning, a financial power of attorney (also known as a durable power of attorney for finances) grants someone you trust the authority to manage your financial affairs and make decisions on your behalf if you become incapacitated or unable to handle them yourself.
You can give a power of attorney even if you are competent.
But, remember, in terms of estate planning, you’ll want a durable power of attorney in the event that you become incapacitated.
Note that even a durable power of attorney will end once the principal passes away.
Estate Planning is way more than a living will.
It’s time to get prepared.
Power of attorney granting medical authority to parents of college-aged kids
In Louisiana, and most US states, a child is legally considered an adult once they turn 18.
Which means that, legally, parents no longer have automatic authority over their child's healthcare decisions or legal matters when their child turns 18.
Imagine this: If your child goes off to college and has a healthcare issue after their 18th birthday, you (as the parents) may not access their child's medical information or have the ability to make healthcare decisions without the child's explicit (legal) consent.
Therefore, it’s probably a good idea for parents with kids going off to college, that their kids sign a Healthcare Power of Attorney (HCPA) and potentially a HIPAA release form (Health Insurance Portability and Accountability Act).
Doing so ensures the parents have legal authority to make healthcare decisions on behalf of their child and access their medical information if the child becomes incapacitated or is unable to make decisions due to illness or injury.
By having their child sign a Healthcare Power of Attorney and a HIPAA release, parents can step in and assist with medical decisions or access medical information during emergencies or if their child is unable to communicate their wishes.
Quick tip: HIPAA can go into healthcare power of attorney or it can be separate.
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A power of attorney is no longer valid when someone dies.
The most common misunderstanding I run into as a Louisiana estate planning lawyer has to do with the terms of a power of attorney.
I usually encourage people to establish a durable power of attorney, which will remain in effect should someone become incapacitated.
This is typically the best option for estate planning purposes.
However, it’s important to note that even a durable power of attorney will be terminated upon a person’s death.
Once a person dies, the last will and testament will be enacted, which gives authority to an executor.
The executor then becomes the authority on estate and any administration tasks and responsibilities therein.
It’s important to create a full estate plan, complete with living will, powers of attorney, last will and testament, and other ancillary documents that protect you and your family for the duration of your estate planning needs.
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Estate planning is about putting a plan in place to take care of you, your loved ones, and your property when you are no longer able to do so.
Expecting the unexpected and doing what you can to prepare for it is the best you can do when it comes to estate planning.
A power of attorney is an essential tool for anyone creating a successful estate plan.
So, wether you’re just getting started or are updating an already established estate plan, it’s important to consider your options, ask for help and keep updated on the latest estate planning updates in your state.
Louisiana estate planning really can be simple.
Check out my digital resources, read through my estate planning articles, and be sure to reach out if you have any questions or need specific insight into your estate planning situation.
You’ve got this.
Take Care,
Addie
FAQ
Q: What is a power of attorney?
A: A power of attorney grants a trusted person the authority to make legally binding decisions on your behalf.
Q: Is a power of attorney is a document exclusive to estate planning?
A: No! There are several different types of powers of attorney that can be put in place for non-estate planning scenarios. However, having at least a durable power of attorney in place is most likely necessary to have a successful estate plan in Louisiana.
Q: Should I have more than one power of attorney?
A: When it comes to estate planning, it’s generally best practice to have a both a healthcare power of attorney and a financial power of attorney. Should you need a power of attorney - you don't necessarily want healthcare professionals to see financial stuff, and you don't necessarily want financial folks to see healthcare stuff.
Q: Is a power of attorney still valid after someone dies?
A: No. Even a durable power of attorney is no longer valid after the principal passes away. In terms of estate planning, a durable power of attorney will remain in effect should you become incapacitated. However, it becomes void should you pass away.
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