A power of attorney is a legal document that lets you designate someone as your agent and gives them the power to act on your behalf in legal, financial, or medical matters. While it can be a very important legal tool, in some cases concerns may arise from family members or friends. If you are worried about misuse, coercion, or whether a relative had capacity to consent, a lawyer in Metairie, LA, can give you the answers you need. In some situations, we may also advise on related estate planning matters, such as working with a revocable living trust lawyer, knowing when to update a will, or ensuring your estate plan is structured to transfer property through succession and ensure final wishes are carried out.
Can I Contest a Power of Attorney in Louisiana?
It is definitely possible to contest a power of attorney in Louisiana, but the law is specific on the conditions under which this can be done and the processes that need to be followed.
Louisiana recognizes several types of POA, which in the Louisiana Civil Code are known as mandates or procurations. A general mandate grants an agent broad authority over many affairs, a specific mandate limits the agent’s authority to particular acts, and a durable mandate (known elsewhere as a durable power of attorney) remains effective even if the principal becomes incapacitated, provided that durability is explicitly stated. For a mandate to be legally valid, it must be in writing, signed by the principal, and notarized, typically in the presence of two witnesses.
Who Can Contest a Mandate?
To contest a mandate in Louisiana, you must have standing to do so. Those who may be considered to have standing include family members such as spouse, children, or siblings, heirs or beneficiaries, close friends or caretakers, co-agents or alternate agents named in the mandate, and court-appointed guardians or curators. A challenger must demonstrate that they have a personal or legal interest in the principal’s well-being or estate. This is designed to prevent frivolous or unrelated parties from interfering.
Legal Grounds for Contesting a Mandate
You cannot simply contest a mandate because you disagree with how the agent is acting. Valid legal grounds are questions about the document’s validity or the agent’s conduct.
Lack of Capacity
A principal must be mentally competent at the time they sign the mandate. If the principal was suffering from dementia, Alzheimer’s disease, or another mental condition that prevented them from understanding the document, the document may well be invalid. In such a case, evidence such as medical records, psychiatric evaluations, and witness testimony will be required to establish that lack of capacity.
Undue Influence or Coercion
If someone used manipulation, threats, or pressure to make the principal sign a mandate, this renders the documents invalid. This sort of situation can arise when a vulnerable person is isolated or heavily dependent on the agent. Indicators of undue influence may include things like the principal changing their mandate suddenly and unexpectedly, the agent benefitting disproportionately from the arrangement (especially if they are not a close friend or family member), and the principal becoming isolated from other family members.
Fraud or Forgery
If the mandate was signed under false pretenses, or if the signature or document is forged, it is invalid. This is a serious criminal offense and should be reported immediately.
Agent Misconduct
The designated agent has “fiduciary duty,” which is the legal obligation to act in the best interests of the principal. Even if the mandate was legally valid when it was created, it can still be invalidated if an agent abuses their power by mismanaging the principal’s assets, engaging in self-dealing, or failing to act in the principal’s best interest. In such cases, you may petition the court to:
- Remove the agent
- Compel an accounting
- Recover stolen assets
- Invalidate the mandate
What Objections Are Not Considered Valid?
The courts require specific, legally recognized reasons to invalidate a mandate or remove an agent, such as those detailed above. Not all disagreements or concerns over a mandate qualify as valid legal grounds for contesting it, as is the case with the objections listed below.
Disagreement with the Principal’s Choice of Agent
If the principal voluntarily and knowingly chose a specific agent, you cannot contest the mandate simply because you don’t like the agent or believe someone else would have been a better choice.
Disapproval of the Agent’s Decisions (Without Misconduct)
Agents have broad discretion to act on the principal’s behalf, as long as they follow the principal’s instructions and act in their best interest. You cannot contest the mandate for reasons such as disagreeing with a financial decision, believing that the agent is being “stingy” or “too generous,” or thinking that a matter should have been handled differently. Unless the agent violates their fiduciary duties, these are not grounds for removal.
Family Conflict or Inheritance Dispute
Concerns about how the principal’s estate is being managed under the mandate do not qualify as valid grounds unless there is actual evidence of wrongdoing. Anticipated disputes over inheritance or perceived favoritism in estate planning are not enough to cause the court to act.
The Principal Is Making “Bad” Decisions (While Competent)
A mentally competent adult has the legal right to make decisions others might view as unwise. If the principal signed a mandate willingly and with full understanding, it cannot be contested just because the decision seems poor.
The Mandate Is Outdated
A mandate that hasn’t been used yet, or one that was signed a long time ago, is still valid as long as it meets legal requirements and the principal has not revoked it. It is not invalidated just because a lot of time has passed.
The Principal Has Changed Their Mind (But Not Formally Revoked the Mandate)
If the principal says they no longer want the agent to act but has not revoked the mandate in writing, the document remains legally valid. Unless and until the mandate is formally revoked, third parties cannot act on mere verbal statements or informal intentions.
A New Mandate Exists, But the Old One Was Never Revoked
Having multiple mandates is possible within the bounds of the law, and new ones do not automatically cancel older ones unless the new document explicitly revokes the prior one. Confusion or overlap alone does not invalidate the older mandate.
What Should You Do If You Are Concerned?
Act Quickly
If you are worried that there is a problem with a relative’s power of attorney, or that their agent is not acting in their best interests, you should not delay in taking action. While the mandate and agent remain in place, your loved one may be at risk.
Consult a Lawyer in Metairie, LA
To find out if your concerns are grounds to contest a mandate, the best course of action is to consult an experienced lawyer. We will listen carefully to you as you explain the situation, and will give you clear and honest advice. If we believe that contesting a power of attorney is the right step to protect your loved one from exploitation, we will let you know, and help you to move forward with the legal process.
There is almost nothing more distressing than the idea that an elderly relative or friend may be being taken advantage of. However, be assured that the law takes these matters very seriously.
Contact Our Louisiana Estate Planning Law Firm For Help Today
If you are planning for the future or need guidance with wills, trusts, or probate in Metairie, Louisiana, contact the experienced estate planning attorneys at WJ Blanchard Law to schedule a consultation and protect your family’s legacy today.
We proudly serve New Orleans, Jefferson Parish, and the surrounding areas:
WJ Blanchard Law
2800 Veterans Blvd Suite 257
Metairie, LA 70002
Phone: (504) 313-7478
Hours: Mon-Fri 09:00-17:00
Our firm is located near you. We have an office in Metairie
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