Estate Planning for Incapacity
Posted on Nov 9, 2010 1:50pm PST
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.