Don't Wait to Create A Power of Attorney
Recently I took a phone call from a prospective client who was looking into getting a power of attorney over her mother, who was in the ICU with COVID-19. She was having trouble with her mom’s bank account getting over drafted, and she wanted to have the legal authority to close the account.
A power of attorney (also known as a mandate in Louisiana), is a legal contract that gives another person the authority to manage financial and medical decisions on your behalf. However, to enter into a legal contract, both parties must have capacity. In Louisiana, you are deprived of the capacity to enter into a contract if you are a minor, an interdict, or a person deprived of reason.
In this case, the mother in the ICU was heavily sedated and dealing with a severe case of COVID-19, so she lacked the capacity to enter into a contract that would give her daughter a mandate over her financial affairs. Under the law, it doesn’t matter what a person would have wanted or agreed to prior to losing their capacity- if you do not enter the contract when you are of sound mind, the contract cannot be formed later when you need the effects of it.
This is why it is so important to make a plan when you are healthy and of sound mind- so if the worst happens, you and your family are prepared. As an attorney, it was incredibly frustrating to tell the daughter that all I could offer her in her situation were my prayers, rather than any legal service (technically the mother could be interdicted and a curator could have been appointed, but that process takes a long time and deserves its own post explaining the intricacies of how it works).
Having a power of attorney, a will, and an advanced medical directive created prior to the need for the documents is the best way to ensure that your loved ones are able to navigate tough times with a little more ease.
If you have any questions about power of attorney documents or other estate planning needs, our office is ready to help.