Married couples will often have legal estate documents prepared together. Such documents may include a will, leaving all property to the surviving spouse and/or the couple’s children, and a living will to direct the spouse how to handle medical issues if one spouse becomes incapacitated. However, another estate document may be beneficial for spouses — a durable power of attorney.
What is a durable power of attorney?
A durable power of attorney (POA) is a power of attorney given by one spouse to the other and allows the other spouse to handle certain business or monetary activities and/or medical decisions as detailed in the agreement.
While Louisiana law grants spouses certain rights to act for the other spouse, some activities may or may not be covered. A power of attorney ensures that the other spouse can act without question for the granting spouse. And please keep in mind, that a substitute agent should be named to take over from the other spouse would they become incapacitated or die.
Some examples of business decisions in real estate matters where the well spouse is not a co-owner (perhaps because the real estate was a premarital asset or for other tax reasons) and can act for the incapacitated spouse are:
- The other spouse can collect rent
- To pay real estate taxes for properties that may not in both spouses ownership
- To handle issues related to any mortgages
- To take out property insurance
Some other general business related functions a durable power of attorney can include:
- To sue on the collect of a debt
- To file for bankruptcy
- To write checks and do banking transactions
- To sell stock or other securities
- To file tax returns
- To manage retirement accounts
- To borrow money
- To make loans
- To make charitable donations
- To hire attorneys, accountants or other professionals
The medical power would allow the other spouse to speak to doctors, receive and review medical records, and make medical decisions, which work in conjunction with the Living Will.
Durable means that the Power of Attorney will survive any incapacity of the granting spouse and will continue in full force and effect until death or revocation by that spouse.
So in closing, this is a very brief overview of the importance of a Durable Power of Attorney and the importance to have one even if you are naming the other spouse as the agent. I hear that a lot from people. I don’t need a power of attorney – my spouse can act. As we have seen, such a thought means you are relying on all of the laws of Louisiana to determine if the spouse indeed has the right to act. A durable power of attorney signed by the spouse before any disability that would effect their competency, and duly notarized and witnessed for validity) can come in handy in a family emergency and is a smart thing to do.
Attorney at Law