Louisiana Mandate or Power of Attorney
While most people think of estate planning as only functional after your death, there’s actually a really important part of estate planning that addresses what happens if you ever become incapacitated. If you were to be in a serious accident and be incapacitated either temporarily or for a long term, an estate plan can provide a way for you to appoint somebody to do those things for you through a document called a power of attorney (in Louisiana the legal term is a “mandate”). The alternative is, someone would have to go to court to get permission to handle your affairs, and you just don’t want to do that because it’s expensive, time-consuming, and you may end up with the wrong people in-charge.
Power of Attorney in Louisiana
In Louisiana, the terms "procuration" or "mandate" is used to describe what is referred to in other states and is generally called a Power of Attorney. Regardless of the name given, these legal documents are by which a person, the principal, confers authority on another person, an "agent" to transact one or more affairs for the principal. In some states, the term "durable power of attorney" is used to signify that the authority bestowed on the agent continues, even if the principal is incapacitated. In Louisiana, the power of attorney continues after incapacitation, regardless of whether it is specifically stated in the document.
The Power of Attorney can be for a limited purpose or a limited time, or it can be very broad conferring unlimited power on the agent to make any decision on behalf of the mandate. In certain situations, the authority of the agent to act must be expressed and cannot be implied, and some situations it must be
A word of caution, while the internet is replete with form POAs. While these documents may familiarize you with the authority that can be bestowed on an agent, it is advisable to seek legal advice before signing such a document. In executing a form document, you run the risk of limiting powers you intended the agent to have or you may end up giving the agent power you never intended for him to have.
Advanced Medical Directives
A living will is a type of advanced medical directive that allows a patient to list the care they want at the end of their life and a Do Not Resuscitate (DNR) order. A living will applies only in situations involving a terminal and irreversible condition. In other words, it only applies if the administration of medical treatment or intervention would only prolong the dying process. Form living wills generally do not require attorney review unless there is a question of capacity at the time the person made the living will.
Another type of advanced medical directive is a Medical Power of Attorney. It confers upon the agent the authority to make health care decisions if the principal is incapacitated or cannot make these decisions himself. Language can be included in the general power of attorney described above or if you wish to only confereseparate from the general power of attorney dor language can be include and the principal does not need to be at the end of their life for the mandatary to act on his or her behalf. The Medical Power of Attorney can confer on a mandatary the power to make health care decisions concerning surgery, medical expenses, nursing home residency, and medication administration.
Liability of a Mandate
In Louisiana, an agent who acts on behalf of his principal has a fiduciary duty to act in the principal's best interest. This means when an agent is acting outside the scope of his authority, or not as a prudent and diligent person would act, he could be liable to the principal. Additionally, another party can challenge the Power of Attorney, such as a child of the principal, by filing a civil suit against the agent in the court where the principal lives if he believes the agent is acting inappropriately. The state can also charge an agent with elder abuse if the mandatary takes actions to enrich themselves at the expense of the principal.