The decision on who should be your agent for your power of attorney is usually a fairly easy one. Most people will usually select their spouse or a close friend or family member. However, the more difficult question is who does a person want to serve as the successor agent in the event that the agent is unwilling or unable to serve.
It is strongly advised that you name a successor agent in the event that the agent is unwilling or unable to serve. Your agent may die, become incapacitated or simply not wish to serve for any reason. If your agent is unwilling or unable to serve, an interdiction proceeding will have to be filed to appoint you a guardian to administer your person and property if you failed to name a successor agent.
Therefore, always name a back up successor agent in your power of attorney. Never assume that an agent will be willing or able to serve as your agent when and if you lose capacity.
If you have any questions concerning powers of attorney, consult an experienced estate planning attorney. Kent S. DeJean
It is very common for people to put off executing powers of attorney. In fact, recent studies show that 80% of adults do not have an executed power of attorney. Most people think that powers of attorneys are for people that are sick or old.
In the real world, none of us are guaranteed capacity even today. An accident or health issue can take our mental or physical capacity away from us quickly without prior warning. We would be unable to take care of our own person and property. No one can predict when a person will lose capacity.
The execution of a valid durable powers of attorney is relatively quick, easy and fast.When a person fails to plan in advance, that person is “playing with fire”. Many learn the lesson the hard way. They wait until it is too late. The family may be unable to get the power of attorney executed because the person has lost capacity. The family may have the person sign a power of attorney where capacity is an issue. This can lead to family disputes and/or challenges to the document.
If you have any questions concerning powers of attorney, living wills and advanced medical directives, you should contact an experienced estate planning attorney. Kent S. DeJean
Powers of attorneys are a lot like medical insurance. Many people don’t pay very close attention to the written document until we need to use the power of attorney or the insurance. It is when you begin to have to use them that you discover what you don’t have. Then it may be too late.
When a power of attorney is executed, the agent automatically thinks that the agent can handle all affairs under the sun for the principal. This is not always a good assumption to make.
First of all, here are different types of written powers of attorney. There are powers of attorney for making decision over the person such as health care decisions, housing, and therapy decisions. There are other powers of attorney for the agent to make financial decisions regarding the estate. An agent may have a financial power of attorney and not a healthcare power of attorney.
Secondly, powers of attorney should be written very general to include any and all possible decisions. However, many powers of attorney are not general. Some give very limited authority for the agent to act on behalf of the principal. This can be very problematic for an agent to find out that they do not possess the right kind to make certain decisions and not other necessary decisions.
The best time to read the fine print is long before the power of attorney is used so that corrective action can be taken. Otherwise, time, money and effort may be required to file a interdiction legal proceeding to allow the agent to make all decisions.
If you have any questions about powers of attorney, you should contact an experienced estate attorney. Kent S. DeJean
Under Louisiana law, there is no law that says you can only have one agent administer your estate or person if you become incapacitated.
Many people struggle with the decision as to who they wish to appoint to be their agents in their powers of attorney. Many times, people do not wish to hurt the feelings of family members or friends. So, they appoint more than one agent.
Appointing more than one agent is not always a good idea for several reasons.
1. Who is the boss? If there is more than one agent, all is fine as long as the agents get along and agree. What happens if they don’t agree or don’t get along? A dispute could become litigated. An interdiction may have to be filed. This will expend time and money. An interdiction is the primary reason a power of attorney is executed to avoid. At the end of the day, there should only be one boss.
2. Extra work and headache! If there are more than one agent, the consent of both may be needed or required to administer the principal’s assets or make medical decisions. This can be very problematic. Checks, documents and statements may require two signatures of both agents. The other agent will have to constantly be located and their consent received before anything can be done. This can be very inconvenient to agents and can expend time and money.
If you have any questions concerning powers of attorney, contact an experienced estate planning attorney. Kent S. DeJean
One of the biggest mistakes an agent can make that can lead to family conflict is to do things secretly. If do things secretly, others without knowledge will often times assume the worst. You are up to no good even though everything you may have done is above board.
The agent in a power of attorney owes fiduciary duties to the principal. The agent must explain, answer questions and account for what is being done to the principal. I would recommend that the agent go several steps further.
The agent should have regular monthly meetings with the principal review all bills and income together. The checks should be written in front of the principal. By having this transparency, this will greatly reduce future anxiety, suspicion and conflict.
I would even recommend that all siblings, spouses and close family members be invited to attend. The invitation itself will help alleviate future suspicions. If the family members do attend the monthly meeting, you will find over time that they will cease to attend after a couple of meetings.
The law does not require this complete and open transparency. But, you will find that this “ounce of prevention will be worth a pound of cure”.
If you have any questions concerning powers of attorney, please consult an experienced estate planning attorney. Kent S. DeJean
Unfortunately, it is common for agents in powers of attorney to continue to use them to conduct financial business even after the principal has died. Once a principal has died, the agent and the principal’s family or legatees should consult with a succession attorney.
It is important to remember that powers of attorney should never be used to conduct business once the principal has died. The agent has no legal authority to conduct business. Under Louisiana law, the administration of assets is governed by succession law. It will necessary to obtain the proper authority of a court or obtain necessary documentation to obtain the authority to administer the assets and debts of the principal’s estate.
Since the agent lacks legal authority once the principal dies, any actions taken by the agent using the power of attorney to administer the Principal’s estate, can be challenged. This can subject the agent to possible civil litigation and criminal actions.
If you have any questions regarding powers or attorney or succession, please consult an experienced estate planning attorney. Kent S. DeJean
In Louisiana, the only option your family or friends will have, is an interdiction proceeding if you lose capacity and do not have a power of attorney. An interdiction is a legal lawsuit and proceeding to appoint someone to handle your personal and financial decisions while you are incapacitated. Let’s compare the following:
Cost of Powers of Attorney: a couple of hundred dollars.
Cost of Interdiction: At least $ 3,500.00 including your attorneys fees, curator’s attorneys fees and court costs
Who selects agent with your power of attorney? You do.
Who selects a curator with your interdiction? The judge.
How long does it take to complete powers of attorney? Less than two weeks.
How long does it take to complete an uncontested interdiction? Two to six months. A contested one could take even longer.
The choice should be an easy one. “An ounce of prevention is worth a pound of cure”. If you have any questions about powers of attorney or interdiction, please contact an experienced estate planning attorney. Kent S. DeJean
The decision on who your agent should be can sometimes be difficult. However, you should carefully consider who that you want your agent for your power of attorney to be. The reason you should carefully consider this decision is that whoever you do appoint as agent, will have the opportunity access and manage your assets at a time when you may not be able to supervise them. They will also be making important medical and care issues regarding your person.
First and foremost, you should consider only persons that you find trustworthy. If a person cannot meet this minimal requirement, you should not consider them as candidates.
Once this minimal requirement is met, you should consider other factors such as where that potential agent lives, their education, their experience, and how close they are to you personally. If you are still having trouble deciding, you should consult family, friends or an attorney, you help advise you on your decision.
If you have any questions about powers of attorney, you should consult an experienced estate planning attorney. Kent S. DeJean
It is a good habit to review your powers of attorney as well as all of your estate planning documents at least every five years and any time there is a significant change in your life (marriage, divorce, death, adoption, etc.) .
The reason is important to constantly review your estate planning documents is that your property and debts will change over time. Your relationships will change. There are certain friends or family members that you will get closer. There are other relationships that may become less significant or estranged.
For example, you may have appointed your brother to serve as your agent of your power of attorney. He may have died, become incapacitated or you no longer have a good relationship with him.
Many documents such as a powers of attorney (mandate in Louisiana), give you that authority to change your mind. You do not have to have a reason. You do not have to explain why you want to make the change.
So, just because you sign a power of attorney, doesn’t mean you are locked into it forever. As long as you have capacity, you may change your mind and change the power of attorney at any time.
Should you have any questions, please contact an experienced estate planning attorney. Kent S. DeJean