Everything you need to know about Louisiana Power of Attorney

Power of Attorney, also called “Mandate” or “Procuration” under Louisiana Law is necessary to grant another person (an “agent”) the authority and right to make legal, financial, and medical decisions on your behalf.

Under Louisiana Law, this document is basically a written agreement between you (the “principal”) and the agent for the transfer of decision-making power. Think of it as an essential estate planning document that transfers the power of making financial, medical, and legal decisions for you with your full consent and authority.

A Power of Attorney is a useful and much-needed part of your estate plan. Coupled with a Last Will and Testament or Living Trust, a Power of Attorney forms the basis of a proper estate plan.

You are in charge of making your own decisions as long as you have mental and physical capacity. However, there is better than a 70% probability that you will be unable to make decisions for yourself at some point in the future. What then? You and your loved ones will be left vulnerable without the proper Power of Attorney in place.

Having a proper Power of Attorney in place assures you that you and your family will not be left hanging at the brick if you become temporarily or permanently incapacitated.

This article covers everything you need to know about the Louisiana Power of Attorney.

What is a Power of Attorney?

A power of attorney is a legal document that allows you (as principal) to grant someone (agent) the power to make your decisions. Your agent can act for you, which is the primary purpose of a Power of Attorney. Decision-making authority can be granted for medical, financial, tax, estate planning, and asset protection purposes, depending on your POA.

The agent or person granted may have complete or limited authority to make decisions on the principal’s behalf as per the POA. This includes having the authority and right to pay your bills, buy or sell property, make medical decisions, file taxes, make donations, move assets to protective structures, etc., on your behalf. As a principal, you can choose the agent from any of your family members or trusted friends.

Cost of a Power of Attorney

The cost of making a POA varies widely depending on the form and the provider. You can find the POA form online or seek an attorney for help. Although a financial or medical POA can often be obtained free of cost from some online sources, this is risky business, especially in Louisiana because most online forms are like a box of chocolates – you just never know what you are going to get and if the POA isn’t powerful enough, you probably won’t know that until it’s too late to fix it.

Attorney-prepared forms are usually more expensive. The range of fees for attorney-prepared documents will vary greatly. Attorney fees typically from $750.00 to $2,500.00 for a Power of Attorney package.

GeauxPlans Power of Attorney package starts at $99.00 and includes the following:

• Durable Financial Power of Attorney
• Durable Medical Power of Attorney
• Advance Healthcare Directive
• HIPPA Authorization

The key difference between GeauxPlans Power of Attorney documents and other online forms is that GeauxPlans documents are attorney-prepared documents and are actually used by Louisiana lawyers in the practice of law. GeauxPlans documents are attorney-grade and 100% compliant with Louisiana law, which is the primary purpose of GeauxPlans – to provide a safe and reliable source for online estate planning in Louisiana – because Louisiana ain’t Mississippi or anywhere else!

Hiring a Lawyer to Draft Your Power of Attorney

As mentioned above, attorney fees for a POA form vary widely. While online forms can be quite cheap or even free (but be very careful with online sources, especially in Louisiana!), you may also choose to hire an attorney to prepare documents for you.

If you have a complicated situation, seeking professional legal help from an attorney would be recommended. GeauxPlans is affiliated with an estate planning law firm, so feel free to contact GeauxPlans for a referral to a certified specialist estate planning attorney. Sometimes just a little guidance can go a long way, such as whether should you have co-agents, or who should be your successor agents.

An experienced attorney can create the Power of Attorney for you and also give you a detailed explanation of the content of the document. Creating a POA with an attorney will almost always cost you more than obtaining a Power of Attorney from an online source. Some attorneys will charge hourly, while others charge a flat fee, depending on preference. Attorney fees often range between $750 and $2,500 for an attorney-prepared Power of Attorney package, which should include a Financial Power of Attorney, Medical Power of Attorney, Healthcare Directive, and a stand-alone HIPPA Authorization.

Of course, the cost of a Power of Attorney package with GeauxPlans fees is much less and GeauxPlans documents are “attorney-grade”, but be sure to seek the advice of an attorney if your situation warrants.

How to Create a Power of Attorney?

Creating a Louisiana Power of Attorney can be simple and easy, especially with GeauxPlans. Here is the step-by-step guide that will help you, as a principal, in creating and setting a POA:

1.     Choose the Type of POA

Power of Attorney forms vary from state to state. While a Durable POA may be recognized by sister States, it is best to obtain a Power of Attorney form that is valid in the state of residence of the principal. The first thing you need to consider is the type of POA you need according to your circumstances. There are many types of Powers of Attorney discussed in more detail below.

2.     Choose an Agent or Co-Agents

This is a very sensitive and important choice for the principal. For example, an elderly parent may have to choose from children or other family members to become their agent. At the bottom, the principal must trust their agent to make knowledgeable and responsible decisions.

GeauxPlans provides a Healthcare Power of Attorney, as well as a Financial Power of Attorney, so you can choose different people to make healthcare and financial decisions. These need not be the same person.

An agent must be trustworthy and not misuse authority, or cause conflict for the principal and their family members.

3.     Prepare the Scope of the Mandate

In this stage, the principal chooses whether to grant their agent general (broad) or limited (tailored) authority over their healthcare or financial decisions.

GeauxPlans offers both a durable general power of attorney, as well as a durable general healthcare power of attorney. If you wish to limit the decision-making of an agent, the counsel and advice of an experienced estate planning attorney is generally recommended. Feel free to contact GeauxPlans for a referral to an affiliated estate planning law firm.

4.     Create a POA Draft

The principal should create and review their power of attorney before signing the document. Louisiana does not have a standard form for POA, but there are many provisions of a power of attorney that must be specified in writing in order to vest an agent with such authority. The absence of such powers could render the power of attorney defective, or not powerful enough.

GeauxPlans’ Power of Attorney forms are generally broad in scope and should be considered a “general” power of attorney. For a limited power of attorney, GeauxPlans recommends consulting an estate planning attorney.

5.     Sign the Document

The last step is signing the document only after the principal fully understands the provisions of their power of attorney. There is no required signing formalities. However, GeauxPlans generally recommends that both the principal and agent sign the power of attorney in the presence of a notary and two witnesses in order to properly vest the agent with authority to conduct transactions that require an authentic act in Louisiana, like donations and transferring real estate.

Ideally, the witnesses should not be related to the agent or principal in order to minimize any potential claim of “undue influence.”

5 Specific Types of Power of Attorney Forms in Louisiana

There are 4 broad categories of Powers of Attorney in Louisiana, including General, Limited, Springing, and Durable.

General POA	Under General POA, you can grant full authority to the agent for making healthcare and financial decisions. A general power of attorney is usually quite broad in scope and it is intended to authorize an agent to make any decision that the principal could make on their own.
Limited POA	A Limited Power of Attorney permits the agent to make decisions for a limited time (not continuing) and/or allows only limited authority to the agent for specific acts.
Springing POA	A Springing Power of Attorney becomes effective only in the event the principal is incapacitated, which may require certification from two physicians. A Springing Power of Attorney is not effective unless the principal is mentally or physically unable to make decisions.
Durable POA	Lastly, a Durable Power of Attorney survives the incapacity of the principal and remains effective if and when the principal is declared unfit to make financial and healthcare decisions. Generally, a Power of Attorney is most useful when the principal is incapacitated, so a Durable Power of Attorney is often recommended to avoid a court proceeding regarding the decision-making of the principal.

Aside from the 4 categories of Powers of Attorney (general, limited, springing, and durable), there are a number of types of specific powers of attorney, each of which would be considered a “limited power of attorney.” The most common limited powers of attorney would be financial and medical powers of attorney. If an expansive financial and medical power of attorney were rolled into one document, then it might be considered a General Power of Attorney, but standing alone each should be considered a Limited Power of Attorney.

1.      Financial Power of Attorney

The designated agent under a Financial Power of Attorney holds complete authority over the financial matters of the principals. The chosen representative will represent and work toward safeguarding the principal’s financial interests in business endeavors, property matters, tax issues, financial assets, etc. Preservation and management of the principal’s financial assets are the primary responsibilities of a financial agent. These duties may include handling principal’s accounts, making transactions, paying off debt, selling or leasing property, managing various business operations, etc. Since a Financial Power of Attorney affords significant powers to the mandatary, the agent should be carefully selected and a co-agent may be appointed if checks and balances are prudent.

2.      Medical Power of Attorney (aka “Healthcare Power of Attorney”)

A Medical Power of Attorney allows your agent to make decisions about your medical care, such as making care arrangements and consenting to medical procedures. A Medical Power of Attorney (aka “Healthcare Power of Attorney”) should also be HIPPA compliant to authorize your chosen person to access protected health records and information. A Medical Power of Attorney is usually given to a spouse and/or close relatives, family members, or friends.

A Medical Power of Attorney is different from a Living Will (aka “Advance Healthcare Directive”), which governs end-of-life decisions. A Living Will usually overrides a Medical Power of Attorney. However, if a Living Will does not exist, your chosen agent should be able to make end-of-life decisions for you.

3.     Vehicle Power of Attorney Durable

Working with the Department of Motor Vehicles is notoriously difficult. People often need help obtaining proper paperwork and documents to effect a change regarding motor vehicles.

A Vehicle Power of Attorney is a limited power of attorney that authorizes your agent to deal with the Department of Motor Vehicles on behalf of a principal. This power of attorney is limited to transactions related to vehicles. Therefore, it is considered a limited power of attorney that would authorize your agent to change a title, renew a registration, obtain a duplicate title or registration, effect a transfer, sale, or donation, and generally communicate with the Department or Office of Motor Vehicles on behalf of the principal.

4.      Tax Power of Attorney

A proper power of attorney is required for an agent to deal with taxing authorities. Each taxing authority has its own form. The Internal Revenue Service requires Form 2848. The Louisiana Department of Revenue Requires Form R-7006. Proper completion of these forms requires great attention to detail as the tax period and particular issues must be set forth in the form itself. The form must be limited to the exact issues and time periods to be accessed and addressed by the agent.

Often experts need to be hired to handle tax-related problems. Tax return preparers also need proper authorization to interface with the applicable taxing authority. In both cases, proper documentation is required.

Taxing authorities generally will not accept general or financial powers of attorney, even if the document legally authorizes the agent to deal with taxing authorities. State and Federal taxing authorities generally require their own form. As such, it’s important to follow the protocols of the relevant taxing authority.

In addition, your tax matters agent should obtain the requisite knowledge and expertise to communicate on your behalf with the relevant taxing authority. A friend or family member is not usually the best choice to serve as a tax matters agent, except perhaps for limited purposes such as claiming a refund.

5.     Minor (Child) Power of Attorney

Many people need to employ childcare workers or other family members because parents are too busy in their professional or personal lives to stay at home to look after the child’s growth and development fully. Additionally, with an increase in professional travels or trips, parents may be away from their children for a significant length of time. In such cases, childcare workers or family members are unable to attend to many child-related matters absent proper legal authority.

It is possible in Louisiana to delegate authority for a minor child to another person through a “Provisional Custody by Mandate of Persons Having Parental Authority.” (La. R.S. 9:951) This limited power of attorney helps designate a representative who can make important decisions concerning health, education, support, maintenance, etc., for children when the parents are absent. It is usually used when parents face long-term distance from children in the form of job postings, military deployment, etc. The duration of the Minor’s (Child) Power of Attorney is one year, after which it automatically expires.

6.     Real Estate Power of Attorney

Through the Real Estate Power of Attorney, the principal appoints a representative who can assist them in their real estate transactions and related affairs. A Real Estate Power of Attorney is “limited” because it typically authorizes an agent to assist with all matters of real estate, or possibly further limited to specified properties. The time period for a Real Estate Power of Attorney may be limited, as well.

A Real Estate Power of Attorney generally authorizes an agent to engage in real estate transactions on behalf of a principal. Sometimes a Real Estate Power of Attorney is created for the sake of convenience to allow another person to sign real estate deeds for a principal who is unavailable on the scheduled date of signing. This document can also be useful to grant general authority to transact business involving real estate akin to “standing authority,” in which case the Real Estate Power of Attorney may be recorded in the conveyance records to put third parties on notice that the agent has continuing authority to deal with real estate on behalf of a principal.

As with any power of attorney, the choice of agent must be carefully considered to protect the interests of the principal.

Revocation of Power of Attorney

A power of attorney grants various important authorities to the chosen representative (agent) depending upon the type issued. There can be situations in which the principal may wish to remove these authorities from the mandate. Sometimes the person you have chosen is no longer appropriate.

Sometimes your chosen person is no longer available or is no longer an appropriate person to serve as your agent. Reasons may include the misuse of authority, or the principal might want to resume those responsibilities themself. Whatever the reason, a Revocation of Power of Attorney should be signed to remove the authority of an agent.

A newly executed Power of Attorney sometimes contains a revocation through introductory language to the effect that all prior powers of attorney are hereby revoked. Sometimes, however, it makes sense to execute a standalone Act of Revocation of Power of Attorney.

A written Power of Attorney should not be revoked verbally. A proper revocation is written and in the same form used to effect the power of attorney that is being revoked (for example, by an authentic act in the presence of a notary and two witnesses). Failure to properly revoke a Power of Attorney can lead to legal problems because verbal authorization is not effective against third parties who may still rely on a written Power of Attorney. Thus, it is prudent to follow the exact process that you followed to create a power of attorney for revoking it.

A written Act of Revocation of a Power of Attorney often should be recorded to create a public notice of revocation. Otherwise, third parties may continue to rely on a previously revoked written Power of Attorney.

The Act of Revocation of a Power of Attorney should be delivered to the agent being removed because the removed agent may continue to act if they are unaware that their Power of Attorney has been revoked.

What Do You Need to Know Before Signing the Power Of Attorney Form?

A Power of Attorney is a legal document, so you need to be sure the document complies with the peculiar requirements of Louisiana law. In addition, the Power of Attorney should be signed in the manner required by Louisiana law.

You can create a Power of Attorney that fully complies with Louisiana law through GeauxPlans. The primary purpose of GeauxPlans is to create a safe and reliable platform for online estate planning in Louisiana.

Risks

A power of attorney can become a dangerously powerful document if passed into the wrong hands. It’s natural for the children, siblings, or the parents of the principal to be their first preference or choice. Still, humans, whether related or not, are capable of making bad decisions. Appointing a power of attorney to the wrong person can lead to theft, loss, bankruptcy, or self-dealing from the agent.

To minimize risk, make sure, as the principal, your agent accounts for all their actions. An agent is a fiduciary, which means they owe their principal duties of loyalty and care, including a duty to account. A full accounting of all their actions is due upon termination of the agency and more frequently if requested.

A Power of Attorney should be reviewed periodically and updated to reflect changes in family dynamics and circumstances. The actions of an agent should be monitored closely, as well. If changes are warranted, then consider an Act of Revocation, or simply amend or restate an existing Power of Attorney if you wish to keep the same agent.

A Power of Attorney that is not “durable” will terminate upon the incapacity of the principal. This may or may not be desirable. Often the whole point of a Power of Attorney is to be able to manage the affairs of a principal during a period of incapacity, so a “durable” power of attorney is usually desirable. However, the decision to effect a durable Power of Attorney should be deliberate because full trust must be placed in the agent to properly manage the affairs of the principal, which usually cannot revoke a power of attorney during a period of incapacity.

All Powers of Attorney terminate upon the death of a principal.

Power of Attorney Forms

There are many types of Powers of Attorney ranging from general to limited. There are numerous online platforms that offer forms. Most online forms are like a box of chocolates: you never know what you are going to get. Louisiana is so unique that using any unfamiliar online estate planning form is a risk. However, GeauxPlans is unique.

As of this writing, GeauxPlans is the only online estate planning platform designed specifically for Louisiana. While many online estate planning platforms purport to be valid in all 50 states, there are risks associated with utilizing forms that have not been developed in Louisiana. In fact, GeauxPlans Power of Attorney forms are used in the actual practice of law by Louisiana estate planning attorneys. GeauxPlans forms for Power of Attorney are also maintained and updated periodically by practicing Louisiana estate planning attorneys.

You should obtain a Power of Attorney form from a trusted source but use caution. Click here for an example of a bad online form for a Louisiana Power of Attorney that hasn’t been updated since last century!

If you aren’t comfortable using an online Power of Attorney form, then consider hiring a qualified estate planning attorney to assist prepare a Power of Attorney for you. Feel free to contact GeauxPlans for a referral to a qualified and experienced estate planning attorney.

Power of Attorney Requirements in Louisiana

There is no particular form requirement for a Louisiana Power of Attorney. However, the form of the Power of Attorney does matter. For example, an authentic act in the presence of a notary and two witnesses is required to transfer real estate in Louisiana. As such, a Louisiana Power of Attorney that grants an agent authority to deal with real estate should be executed by both the principal and agent in the form of an authentic act (in the presence of a notary and two witnesses). There are numerous other examples where the form of the Louisiana Power of Attorney makes a difference.

Here are a few recommended features for a Louisiana Power of Attorney:

• The Power of Attorney (aka “mandate” or “procuration”) should be in writing. Verbal mandates are generally not effective for the most common actions of an agent.
• A Power of Attorney should be executed in the presence of a notary and two witnesses, which is referred to as an “authentic act” in Louisiana. If you are creating copies of the Power of Attorney, a “notarial copy” is recommended whereby the notary will certify that the copy is a “true copy.”
• The principal and the agent should not act as witnesses to the Power of Attorney. Witnesses should not be participants in the Power of Attorney, whether a principal, agent, or successor agent.
• The notary that attests your documents must be official and certified through the state, county, and parish where the documents are being notarized. Many notaries are only authorized to notarize documents in certain parishes or counties.

GeauxPlans offers will-based and trust-based estate planning packages that include Powers of Attorney. Ready to start your estate plan? Let’s Geaux!

Conclusion

A proper estate plan includes a Power of Attorney, which is a legal document. As such, it is recommended that you obtain the Power of Attorney form from a trusted source, whether Geauxplans or an attorney.

The principal (the person creating a Power of Attorney) is liable for the acts of the agent, so consider the choice of the agent carefully. For married couples, often a spouse is the first choice followed by a successor who would step in if a spouse is unable or unwilling to serve or to continue to serve as an agent.

Estate Planning is simply making decisions now, while you can before you can’t. Planning for incapacity is a necessary part of the estate planning process. As such, a Power of Attorney is an essential ingredient in a well-drafted estate plan.