"durable" poa

the word durable has reared its head again.  lex helped a lot the last time i brought it up, but the website has changed and i can't find that thread.

an attorney has explained that a general power of attorney is not durable and becomes invalid if the clause does not exist saying to the effect "this general power of attorney remains in effect in the event the appearer suffers incapacity due to physical or mental illness reasons".   

from what i remember, the word durable has no special meaning or carries no special weight; unless the legislature has passed something i haven't heard about in 2 or 3 years.
durable only means that the poa doesn't become invalid by the mere passing of time, and only is invalid upon revocation by the appearer.

and from what i know, that's what poa's are for, to enable the chosen agent to act in the stead of the appearer's incapcity to perform their usual daily life's business.  it boggles my mind to hear that a poa is invalid upon the appearer becoming incapacitated.

so, once again lex, can you offer clarity to me in light of what another attorney has said? 

windhorn

i'm not lex but you are correct.  "durable" has no place in the discussion regarding LA POAs.  They are by their very nature durable.  LA powers of attorney are required to be in authentic form (2 witnesses and notary).  they are also required to be revoked in the same manner.  (not considering special circumstances like the agent attempting to kill the principal, etc.)  So, if the principal grants POA and then becomes incapacitated, the POA essentially becomes irrevocable b/c he had not revoked it prior to incapacitation and is obviously unable to do it after incapacitation b/c he does not have the capacity to revoke. 

I'm new in the forum and lex seems like the man but I think he will agree.

thecard

[unless]

Louisiana uses "mandates" many times rather than power of attorneys. A mandate is a contract of sorts. The mandate is a contract which confers the ability to handle particular affairs on someone. For example, we use "provisional custody by mandate" on this site a lot. That's basically a contract for one personal to have provisional custody; BOTH parties have to sign. However, mandates work real oddly -- though the law doesn't require a particular form, if a mandate is done to allow someone to handle a task for you, then the mandate has to meet whatever legal requirement as to form that the document has. In other words.....if you do a mandate to allow someone to do a real estate transaction for you, and the real estate transaction itself would require a notary and two witnesses, then the mandate does too. Make sense?

In Louisiana, "power of attorney" specifically relates to military powers of attorney. IN GENERAL when you see 'power of attorney' that's what it means in LA: a power of attorney done by or for a military member.

Mandates, on the other hand, can be canceled by either party (because they are a contract). Contracts end upon the death of the individual. However, they do not end upon the primary person's "incapacity", and the reason is this: in Louisiana, people are considered competent (and therefore able to carry out contracts) unless an interdiction has been done. There technically IS no incapacity without that interdiction. Okay, so there are 4 ways to end a mandate: by withdrawal of one of the parties, death of one of the parties, interdiction of the mandatary, or qualification of a curator after interdiction. the last 3 are listed in CC 3024.

So is it "durable"? not really, if you look at it from the perspective of the contract that the mandate really is.......

Oh, and one more qualification on the answer: there are some cases, specified by statute, in which a mandate cannot BE withdrawn, for example in the case of a mandate in conjunction with a mortgage that hasn't been paid off (RS 9:5388).

Louisiana did not sign the Uniform Power of Attorney Act. They do have a 'will to live' form, regarding end of life decisions, authorized by Louisiana Life Sustaining Procedures Act, La. Rev. Stat. §§ 40:1299.58.1 to –10 (I wasn't sure what part of law you were asking about, with the power of attorney question).

3kidsmom

A POA does not have to be in authentic act form unless a transfer or mortgage of real property is contemplated.

And, yes, a Louisiana POA by statute is "durable" in that time or incapacity does not revoke the power. Only death or revocation by the maker effect a true revocation.

Trouble is, banks now start to create their own policies based on NOTHING and have no clue as to what they are doing. We therefore started throwing the word "durable" around in our POAs just to keep bank tellers happy.

lex