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Are you prepared? Powers of Attorney, Wills, Living Wills, and Tutorships

A snapshot of legal documents that will allow your affairs to be organized and your wishes to be honored.

The global impact, lengthy hospitalizations and shocking death toll caused by the COVID-19 pandemic should serve as a wake-up call to all of us that it is never too early to plan for the day when we are incapable of planning. It is an uncomfortable fact of life that all of us will die someday. Some of us may go quickly, others may linger in a healthcare facility. Some of us will leave behind minor children or pets. While we are alive and healthy, we should plan for the day when we are not alive by making our “Plan B” – what we want done when we cannot do it ourselves. We discuss below the various legal documents that can speak for us when we cannot do so.

POWERS OF ATTORNEY

A power of attorney allows you to appoint someone to act on your behalf in the event that you are not capable of doing so. The powers granted can be broad, such as to cover all aspects of your affairs, or it can be limited, perhaps as to only medical or business matters. Many times, people wait until they are in a crisis situation before giving someone their power of attorney. It is best to plan ahead and decide who you want to manage your affairs, and to what extent, while you are healthy and in a sound state of mind. For example, you may want to have one person make medical decisions for you while someone else manages your financial affairs, even something so simple as paying monthly bills, while you are incapacitated.

Medical decisions include what type of care you will receive and where you will receive it. Should you need to go to a rehabilitation facility or nursing home, you may want to give your power of attorney to a person you trust to investigate such places before you move to one of them.

Financial affairs may include selling real property or managing a retirement investment account. You should consider someone savvy in these fields before making an appointment.

You may put a clause in your power of attorney that it is not effective unless you have been declared incompetent by a medical doctor, thus staving off the effect of the power of attorney until you truly need it.

The law allows several forms for your power of attorney [1] but the most commonly accepted form is the one executed in the presence of a notary and two (2) witnesses who will not benefit from the power of attorney. Your power of attorney may be revoked at any time.[2]

In a similar vein, you may also wish to execute a “living will,” which will direct what kind of life-saving measures, if any, you wish to be taken if you enter end-of-life conditions. The Louisiana legislature has enacted La. R.S. 40:1151 et seq. for this very purpose. You may execute a living will while you are perfectly healthy, and you may file it into a registry with the Louisiana Secretary of State to make sure your wishes are known to your healthcare providers. [3] You can also give the living will to a friend or relative for safekeeping until it is needed.

Unlike a power of attorney, the living will does not have to be notarized; instead, it must be signed in the presence of two (2) witnesses who do not stand to inherit from the person who is the subject of the living will. [4] Should you change your mind about your living will, you may revoke it at any time. [5]

WILLS

A will allows you to make sure that your property goes to the people you want it to go to. Perhaps you want a favorite niece to have a particular piece of jewelry or you want your favorite rod and reel to go to a nephew? Merely saying, “I want you to have this when I die” is no guarantee that your possessions will go where you want them to. A will, however, allows you to make such provisions. You are free to dispose of your estate as you please, subject to Louisiana’s forced heirship and usufruct laws.

A forced heir is your child who is 23 years of age or younger or a child of any age who is permanently incapable of taking care of himself due to a physical infirmity or mental incapacity. [6] If you have one (1) child who is a forced heir, 25% of your estate will be reserved by law for that child; if you have two (2) or more forced heirs, the law will reserve 50% of your estate for them. [7] You may, however, grant your surviving spouse a “usufruct” over the forced portion of your estate, thus allowing your spouse to use the property after your death even though your children may own the property. [8]

Under certain circumstances, you may disinherit your child, even if the child is a forced heir. [9] These circumstances include the child hitting or attempting to kill a parent or not having contact with a parent for two (2) years, unless the child was on active military duty. [10] The disinherison must be in writing. [11] Simply telling people that you do not want your child to inherit any of your property is insufficient.

TUTORSHIP OF MINOR CHILDREN

Upon your death, the tutorship of your minor children will automatically go to your child’s surviving parent if you are married to that parent or share joint custody with that parent. [12] If you are a mother who was never married to your child’s father, and he has not acknowledged the child, then the courts will look first to your parents and siblings and secondly to the child’s father, then award tutorship based on the best interest of the child. [13] If you are your minor child’s only living parent, then you may appoint a tutor to raise your child after your death, but you must do so in writing. [14]

PETS

We love our pets as much as we love our people and a will allows you to provide for your four-legged friends as much as your two-legged friends. The first thing you should do to make sure your pets do not end up in a shelter after you die is to talk to your relatives and friends and determine who is willing to take in your pets upon your death. Secondly, we all know that veterinarian bills can be expensive, so you may want to consider setting aside some money for the care of your pet. The provisions of the Pet Trust can be found in La. R.S. 9:2263. Quite simply, it allows for you to provide financial support to whomever is caring for your animals after your death. The trust will terminate upon the death of the last animal who is beneficiary of the trust and you may designate a beneficiary for the remaining principal.

CONCLUSION

We realize this blog has made you think about things you would rather not think about, but they are important matters that should be taken care of before it is too late. Doing so will ease the burden off of your loved ones and allow you to have things done your way. If you would like to schedule an appointment to prepare any of the documents discussed above, please call us at 504-302-2462. Evenings and weekend sessions are available by appointment. We will work around your schedule. New Orleans family and succession lawyer Gaynell Williams, L.L.C. has offices in Gretna and Downtown New Orleans by appointment only. We also serve victims of auto accidents, work related accidents, medical malpractice, and wrongful death.

This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2020 Gaynell Williams LLC Attorney at Law.

[1] LSA-L.C.C. art. 2993.
[2] LSA – L.C.C. art. 3025.
[3] LSA – La. R.S. 40.1151.2.
[4] LSA-La. R.S. 40:1151.4.
[5] LSA-La. R.S. 40.1151.3
[6] LSA-L.C.C. art. 1493.
[7] LSA-L.C.C. art. 1495.
[8] LSA- L.C.C. art. 1499.
[9] LSA- L.C.C. art. 1617.
[10] LSA- L.C.C. art. 1621.
[11] LSA-L.C.C. art. 1618.
[12] LSA-L.C.C. art. 250.
[13] LSA-L.C.C. art. 256.
[14] LSA-L.C.C. art. 257.

By |2020-04-23T05:20:47-05:00April 23rd, 2020|Uncategorized|Comments Off on Are you prepared? Powers of Attorney, Wills, Living Wills, and Tutorships

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