When you decide it is time to create an estate plan there are important documents that should always be included no matter your age, marital status, or if you do or do not have children. These include healthcare and emergency documents, and a document commonly called a “Power of Attorney.” The Louisiana Civil Code has a chapter dealing with these kinds of documents, but our Civil Code uses the terms “mandate” and “procuration” instead of the more common term “power of attorney.” The terms “power of attorney” and “agent” come from English law, but they are so commonly used in other states that people in Louisiana started using them too. The documents we prepare include language to clear up the confusion between Louisiana legal terminology and the common words most people use. In the rest of this discussion, we will use the common terms “power of attorney” and “agent” instead of Louisiana technical terms mandate, procuration, or mandatary.
We can answer all of your questions and guide you through the process of drafting these legal documents to help protect your best interests. It is important to note that estate planning is not just a matter of your finances. It also involves your medical care.
The ability to name someone else who will be responsible for making decisions related to your healthcare comes under the type of document commonly called a “healthcare power of attorney.” These documents are sometimes confused with another kind of document called a “living will” or an “advance directive” but it is important to understand the difference. “Advance directives” are discussed below and the team at South Louisiana Elder Law takes time to explain these kinds of things because we know there is a lot of confusion in these matters.
The person you choose to make decisions when you cannot make decisions for yourself is called your “agent.” Your “agent” must follow the instructions you have stated in the document regarding prolonging managed care or taking you off life support. This is an important document to have in place so you can give instructions about exactly how you want to be cared for if you end up in circumstances where you can no longer make those decisions.
IF you become incapacitated and do not have a valid power of attorney for healthcare, then the following people may end up making decisions regarding your care:
- Your court-appointed “curator” after someone has filed a lawsuit to have you interdicted and declared unable to care for yourself or your affairs,
- Your spouse
- Your adult child
- Your adult sibling
- A close friend
- Your nearest living relative
The decisions an agent you name in a healthcare power of attorney can make include the following:
- Whether or not you should be admitted or discharged from a nursing home or hospital
- Which medicines or treatments you do or do not want to receive
- Who is allowed access to your medical records
Please note that your agent is only permitted to make these decisions when you are unable to do so for yourself. Your agent must also follow the instructions you state in your power of attorney document.
Yes, you can change the person you name as your agent. Just be sure you have an estate planning attorney draft a new healthcare power of attorney with the new name listed. Once the new document has been created you should destroy the old one. Be sure to inform the previous agent that they are no longer serving in the capacity.
Louisiana law allows a person to sign an advance directive with less formality than a healthcare power of attorney. Some people call this kind of document a “living will” but that really isn’t a good description of what it does. Basically, an advance directive only addresses the question of whether you should be kept on life-support after your treating physicians believe there is no chance you will recover. Although an advance directive is a good thing to have, it is not nearly as comprehensive or as useful as a well-drafted Healthcare Power of Attorney.
It is important that you include a Health Insurance Portability and Accountability Act (HIPAA) release when creating your estate plan. A provision of HIPAA prevents doctors from sharing medical information with anyone other than the patient. For this reason alone you should include a HIPAA release in the estate plan. A release will grant your agent and anyone else who you name the ability to discuss your situation with the doctor treating you.
It’s never too late to create an estate plan unless you or your loved one has become incapacitated. If you are still of sound mind, it is in your best interest to create an estate plan that outlines all of your wishes. The plan should include durable power of attorney for healthcare as well as other emergency documents. Call the South Louisiana Elder Law team at (337) 457-9075 to schedule a consultation today.