The Document That May Keep Your Family From Having to Sue You.
- Hampton Law Firm ⚖️
- Jul 12
- 10 min read
Updated: Jul 19
The practical reasons a Power of Attorney matters.
Over the last several weeks, I have handled two interdiction cases involving families in terrible situations. I cannot tell their stories in a way that would identify them, and I would never try.
What I can say is that both families loved someone whose condition had progressed far beyond ordinary forgetfulness, questionable judgment or the occasional decision to order seventeen decorative pillows from Facebook at two o’clock in the morning.
In one case, the family needed a full interdiction, but the situation was stable enough to proceed through the regular court process. In the other, Alzheimer’s disease was tangled together with opioid addiction, violence, repeated emergencies and an immediate danger to both the infirm person and the people trying to care for her. That family needed an emergency ex parte temporary interdiction, a preliminary interdiction hearing and, ultimately, a full interdiction.
Both families were trying to protect someone they loved. Both were exhausted, frightened and being forced to make decisions nobody wants to make for a parent or spouse. The difference was that one family was walking through an already painful court proceeding, while the other was trying to do it with the building actively on fire and the person inside insisting there was no smoke.
An interdiction is not a family meeting where everyone agrees that Mama should stop driving and somebody takes her keys. It is a lawsuit filed against the person the family is trying to protect. The family must prove that, because of an infirmity, the person can no longer consistently make or communicate reasoned decisions concerning her personal care or property and that her interests cannot be protected through something less restrictive. Louisiana law specifically requires the court to consider whether another arrangement could protect the person without removing her legal capacity. A mandate, commonly called a power of attorney, is one of the less restrictive arrangements that may avoid an interdiction when it is valid, sufficient and actually working. (Louisiana Civil Code arts. 389–390; Louisiana Code of Civil Procedure art. 4541.)
Even a regular full interdiction is a serious proceeding. The person facing interdiction becomes the defendant. She must be served. She is entitled to an attorney. Medical evidence must be gathered. Family members may have to testify about behavior, finances, safety concerns and deeply private events they never imagined describing in a courtroom. If interdiction is granted, the court appoints a curator to care for the person or manage her affairs and ordinarily appoints an undercurator to provide oversight. The curator’s authority begins only after qualification and continues under court supervision.
The emergency version is even more severe. A temporary or preliminary interdiction is available only when there is a substantial likelihood that grounds for interdiction exist and substantial harm to the person’s health, safety or property is imminent. An ex parte temporary interdiction can be granted before the person receives advance notice or an adversarial hearing, but the court must quickly schedule a preliminary hearing. This is extraordinary relief because the judge is temporarily removing an adult’s decision-making authority before the complete case can be heard.
The legal description sounds controlled and orderly. The real-life version is neither.
The real-life version is an adult child trying to obtain medical records while answering calls from a hospital. It is a spouse who has been threatened, struck or frightened but still feels guilty about asking a court to intervene. It is missing money, hidden car keys, unexplained withdrawals and medication that disappeared three days earlier. It is one relative crying, another becoming almost unnaturally practical because somebody has to function, and a third relative who lives three states away, has not visited in six months and has nevertheless developed a detailed list of things everyone nearby is doing incorrectly.
Meanwhile, the attorney is preparing petitions, affidavits, proposed orders, service instructions, appointments, judgments, oaths and letters of curatorship while trying to gather enough evidence to explain to a judge why this cannot wait. The family is not planning for a possible crisis. The crisis is already sitting in the room, hiding everyone’s phones and accusing them of stealing the phones.
That is what I wish more people understood when they tell me they have been meaning to sign a power of attorney.
A Louisiana power of attorney, legally called a mandate, allows one person to give another person authority to handle specified affairs. Depending on how it is written, it may authorize a trusted person to pay bills, manage accounts, deal with insurance, communicate with government agencies, handle property, sign documents and make healthcare decisions. Some important powers must be stated expressly, including authority involving donations, successions, loans, compromises and healthcare decisions such as surgery, medical expenses, nursing-home residency and medication. A document saying your daughter may “handle everything” may sound perfectly clear until a bank or hospital informs her that “everything” is not a recognized department and asks her to return with seventeen additional documents. (Louisiana Civil Code arts. 2989 and 2997.)
The advantage of signing a proper power of attorney is that you choose the person while you still understand the decision. You decide who should manage your money, speak with your doctors, deal with your property and communicate with the insurance company that has somehow misplaced every document you have sent since 2009.
Unless the document provides otherwise, a Louisiana mandate ordinarily does not terminate merely because the principal later becomes incapacitated or disabled. That is what allows authority granted while a person is competent to continue after dementia, a stroke or another condition interferes with the person’s ability to manage her affairs. (Louisiana Civil Code art. 3026.)
When the document is thorough, the right powers were included, the agent is trustworthy and the family is capable of remaining in the same room without requiring separate exits, a power of attorney may prevent an interdiction entirely. The agent may be able to pay the mortgage, renew insurance, handle banking, communicate with healthcare providers and arrange care without filing a lawsuit asking a judge to remove the principal’s legal rights.
That is not a small difference. It is the difference between privately using authority your parent voluntarily granted and publicly asking a court to declare that your parent can no longer make certain decisions.
A power of attorney, however, is not magic. It does not create a legal force field around the family, and it does not come with a complimentary dose of cooperation.
A power of attorney gives the agent authority to act for the principal. It does not ordinarily remove the principal’s own authority to continue acting. The principal may still spend money, sign documents, make decisions and revoke the mandate while legally capable of doing so. A daughter may have authority to pay Mama’s bills, but that does not necessarily prevent Mama from withdrawing the same money the next morning and giving it to a gentleman on the internet who claims to be a deployed orthopedic surgeon and needs $18,000 in Apple gift cards before he can come home.
A son may have express authority to make healthcare decisions and arrange nursing-home placement. That does not mean the document allows him to physically force his father into a facility while his father is actively objecting, walking out the door and threatening to call the governor.
A power of attorney is authority to help another adult. It is not a remote control for another adult.
That is why an interdiction may still become necessary even when a valid power of attorney exists. If the principal is behaving dangerously, refusing essential care, abusing medication, wandering, driving unsafely, giving away money, being exploited or repeatedly defeating every effort to protect her, the family may need more than permission for someone else to act. It may need a court judgment removing particular decision-making rights and placing those rights with a curator.
A power of attorney may also fail because it was signed too late. A diagnosis does not automatically mean a person lacks capacity, and a person with dementia may still understand a particular transaction at a particular time. However, the fact that a notary watched someone move a pen across paper does not automatically establish that the person understood the authority she was granting.
The best time to sign a power of attorney is before everyone has gathered around the kitchen table speaking very slowly, repeating the same explanation and insisting that Mama was “completely herself” for almost seven consecutive minutes.
Then there are competing powers of attorney, which occupy their own dark and highly furnished corner of family law.
Perhaps Mama appointed one daughter five years ago. Later, she signed another document appointing her son. The newer document may revoke the first one, or it may not. The bank has one document. The hospital has another. One child says Mama was completely competent when she signed the second mandate. The other produces medical records and a detailed timeline showing that, during the same week, Mama attempted to telephone her deceased sister using the television remote.
Now two people claim authority. Each believes the other is mismanaging money or interfering with medical care. Each has a notarized document. Each is certain that Mama wanted exactly what that child presently wants.
At that point, the power of attorney has not prevented litigation. It has supplied the exhibits.
A court may have to decide whether the later mandate was valid, whether the principal had capacity when it was signed, whether the earlier authority was properly revoked, whether either agent exceeded the granted powers and whether an accounting or injunction is necessary. If the principal can no longer give reliable instructions and the competing agents are placing her care or property at risk, interdiction may be the only practical way to establish one legally recognized decision-maker.
The same problem arises when the agent is dishonest or abusive. A carefully drafted document cannot transform a selfish child into a responsible fiduciary. It cannot cure a gambling problem, repair a sibling rivalry that began during the Reagan administration or prevent someone from deciding that Mama would have wanted him to purchase a bass boat for the emotional enrichment of the entire family.
If an agent is stealing, hiding assets, making unauthorized transfers, refusing appropriate care or isolating the principal, another family member may still need to seek court intervention. Holding a power of attorney does not make everything the agent does proper. It simply means the agent possesses authority that can be used correctly or abused with impressive efficiency.
Sometimes the document itself is inadequate. It may authorize basic banking but say nothing about healthcare, immovable property, long-term care, government benefits, digital accounts or business interests. When the necessary authority was never granted, the family cannot enlarge the document by pointing firmly at the notary’s seal and repeatedly explaining that everyone knows what Daddy intended.
Louisiana law requires courts to consider less restrictive alternatives before granting interdiction, but “less restrictive” does not mean a family must continue relying on an arrangement that has become dangerous, disputed, abused or ineffective. When a full interdiction is granted and the curator qualifies, the existing mandate and the agent’s authority terminate. The curator then acts under the authority and supervision of the court. (Louisiana Civil Code art. 3024.)
That is the fundamental difference between the two proceedings. A power of attorney says, “I understand what I am doing, and I choose this person to help me.” An interdiction judgment says, “The court has found that this person can no longer make or communicate certain reasoned decisions, less restrictive measures are not sufficient, and another person must now be legally authorized to make those decisions.”
One is voluntary planning. The other is a judicial removal of legal capacity.
One may involve an uncomfortable conversation, a carefully prepared document and a few signatures. The other may involve medical records, lawyers, service by the sheriff, appointed counsel, an examiner, hearings, a curator, an undercurator, court supervision and a family describing the worst moments of someone’s illness in a legal proceeding.
A power of attorney cannot prevent every storm. It cannot resolve two competing mandates, stop a dishonest agent, force a resistant adult to accept treatment, repair a document signed after capacity was lost or create authority that was never included.
What it can do is give someone you trust the legal tools to help before the storm arrives. In many families, that is enough to manage the money, protect the property, arrange care and make necessary decisions without ever asking a court to remove the principal’s rights.
After watching two families walk through very different but equally painful interdiction cases, I can tell you this is not merely an estate-planning sales pitch. It is not about collecting another document for a binder that nobody opens until someone dies. A power of attorney is primarily about what may happen while you are still alive.
It is about whether your children can quietly help you when you begin needing help or whether they must file a lawsuit against you while you are frightened, confused and furious with them for doing it.
For people with a straightforward situation who are ready to plan now, Hampton Law Firm offers a Louisiana Power of Attorney Self-Help Template drafted by me—not copied from a random national website that believes Louisiana law is simply Texas law wearing Mardi Gras beads.
You can click the link below, purchase and download the template, complete it yourself, and follow the included instructions for properly signing it and recording it with the clerk of court when recordation is appropriate. You do not have to schedule a full office appointment merely to obtain a reliable starting document.
The self-help template is intended for straightforward planning while the person signing it still understands the document and can freely choose an agent. It is not the right option when capacity is already questionable, two powers of attorney are competing, family members are fighting over control, an agent may be abusing authority, or the situation involves unusual property, business, healthcare or estate-planning needs.
When the facts are more complicated—or you simply want advice before giving someone broad authority over your life—you can schedule a consultation with Hampton Law Firm for customized advice and drafting.
Nobody enjoys planning for the possibility that she may one day be unable to make safe decisions. It is still much easier to make those decisions now, while you can choose the person you trust and define the authority you want that person to have, than to leave your family standing in the middle of an emergency holding medical records, police reports and two competing powers of attorney while an exhausted lawyer explains that everyone is now going to court.
A power of attorney is not always enough. When it is prepared correctly, signed early enough and placed in the right hands, however, it may be the paper that keeps your family from having to prove in a courtroom that the storm has already arrived.
This article provides general information about Louisiana mandates and interdiction proceedings and is not legal advice for any particular situation. The validity and sufficiency of a power of attorney, the capacity of the person signing it and the need for full, limited, temporary or preliminary interdiction depend on the particular facts and documents involved.
Judith L. Hampton
Attorney At Law
Hampton Law Firm
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