Estate Planning for Incapacity

In today’s life, with an aging population which may be incompetent in the later years of life, avoiding interdiction of the incompetent avoids an expensive time consuming procedure that is inconvenient and embarrassing to the family. The execution of a durable Power of Attorney while the individual is competent can avoid the interdiction. The important point is that in the event of incapacity, the individual has chosen as his or her agent someone they trust to handle their financial affairs. The only specific limitation on the durable Power of Attorney in Louisiana is that it does expire upon the death of the individual. If it is necessary for the Power to continue past the death of the individual, a revocable living trust would be necessary.

A related document is a Power of Attorney for health care decisions. To grant health care decision powers, a Power of Attorney must so specify the powers, that is, it must be specific for health care and not just a general power conferring administrative authority. In other words, a general financial Power of Attorney does not confer the power to make health care decisions. The Health Care Power of Attorney is distinct in function from a Living Will which is intended to declare a competent person’s continuing intentions with regard to health care. The durable Power of Attorney for health care is intended to authorize the agent to take any appropriate action to provide medical treatment. A Health Care Power of Attorney is especially important in situations where there may be conflicting family members. The individual makes the appointment of who they desire to make such medical decisions.

As referred to above, a Living Will is a present declaration of intent by a fully competent person, directing the future withholding or withdrawal of life sustaining procedures in the event of a terminal and irreversible condition. It is intended to express the will of the person respecting future medical treatment while they are alive but unable or incompetent to make medical treatment decisions for themselves. Unlike a testamentary document, a Living Will is effective while the person is alive and unlike a Power of Attorney it does not necessarily appoint a particular person to take such action. It states a directive to be followed by a licensed physician or surgeon.

The Louisiana Anatomical Gift Act provides for the donation of tissues and organs of an individual. This is the act that is referred to on the back of a driver’s license. However, this legislation does not apply when the donor is alive. A donation while the individual is alive requires competent action by the person or a specific power of attorney authorizing this action.

A related topic is burial instructions. These instructions are usually not included in an individual’s will, primarily because most individuals do not review the will until after the funeral. Louisiana does provide that an individual can make internment provisions by executing a document before a notary and two witnesses. Such provisions would then become legally binding. Estate Planning involves more than simply the execution of a Last Will and Testament. Planning for incapacity is an important component of any estate plan.

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