New Orleans Estate Planning Attorney

ASSET PROTECTION

Estate Planning lawyers are knowledgeable about strategies to protect your assets from liabilities and ensure that they are distributed according to your wishes upon death. They can help you create a comprehensive estate plan that may include wills, trusts, power of attorney, healthcare directives, and other relevant documents. Asset Protection can include:

1. Drafting wills and trusts: A will specifies how you want your assets to be distributed after your death, while a trust can help you manage your assets during your lifetime and dictate their distribution after your death.

2. Creating family limited partnerships or family LLCs: These can help consolidate family wealth, provide for the management of the family’s portfolio of assets, and can offer a level of protection against creditors.

3. Advising on retirement plans and life insurance: These can be structured to provide financial security and tax benefits, as well as to provide for your heirs.

4. Assisting with charitable giving strategies: This can help reduce your estate’s exposure to estate taxes while supporting charitable causes that are important to you.

5. Protecting business assets: If you own a business, a lawyer can help protect your business assets from personal liabilities and ensure a smooth transition of the business upon your death.

6. Estate and gift tax planning: A lawyer can help devise strategies to minimize your estate’s exposure to estate and gift taxes.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions regarding Estate Planning, contact The Sunseri Law Firm, LLC today to schedule a consultation.

ELDER ABUSE – FINANCIAL EXPLOITATION

Financial exploitation of the elderly is a form of elder abuse. It involves the improper or illegal use of an older person’s funds, property, or assets. Examples of financial exploitation can include, but are not limited to:

1. Cash theft.

2. Fraud, deception, or coercion to surrender finances or property.

3. Misuse of an elder’s personal checks, credit cards, or accounts.

4. Theft of income checks, like pension or Social Security payments.

5. Improper use of guardianship, conservatorship, or power of attorney.

6. Scams or fraud, often perpetrated by strangers through mail, telephone, or internet.

The perpetrators of such exploitation can range from family members and friends to caregivers, financial advisors, or complete strangers. It’s important to be vigilant and take action if you suspect an elderly person is being financially exploited.

A lawyer can provide a number of services to help with the financial exploitation of an older family member:

1. Legal Advice: The lawyer can provide advice on how to proceed based on the particular circumstances, including whether to report the exploitation to law enforcement or other authorities.

2. Investigation: The lawyer can help investigate the situation, gathering evidence of the exploitation. This could involve reviewing financial records, interviewing witnesses, etc.

3. Representation in Court: If legal action is necessary, the lawyer can represent the older family member in court. This could involve filing a lawsuit against the person responsible for the exploitation.

4. Estate Planning: The lawyer can assist with updating or creating an estate plan to protect the older family member’s assets in the future. This could involve creating a trust, updating a will, or appointing a power of attorney.

5. Interdiction Proceedings: If the older family member is unable to make decisions for themselves, the lawyer could assist with establishing an interdiction proceeding.

6. Restitution: The lawyer can also work to recover stolen assets or seek compensation for financial loss.

Remember, it’s crucial to act promptly in situations of financial exploitation. The sooner the exploitation is addressed, the better the chance of protecting the older family member’s assets and rights.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions or suspect a loved one is being financially exploited, contact The Sunseri Law Firm, LLC today to schedule a consultation.

WHAT IS AN INTERDICTION?

 Q. What is an interdiction?

An interdiction is a legal process where a court is asked to determine, from testimony and other evidence presented, whether a person (hereinafter referred to as the “interdicted person”) is unable, due to an infirmity, to consistently make decisions regarding his person and/or his property, or to communicate those decisions. If such a finding is made, the court appoints someone to make these decisions for the interdicted person. Q. What is a full interdiction? A. A full interdiction occurs when a court determines that the individual is incapable of consistently making decisions about his person and his property.

Q. What is a limited interdiction?

A limited interdiction occurs when a court determines that the individual is incapable of consistently making decisions about his person or his property, or some part of either. For example, a person may be making sound decisions about his medical care or where he will live, but due to some infirmity, such as dementia, can not handle his money.

 Q. What is the legal effect of interdiction?

A full interdict lacks capacity to make a juridical act. A juridical act is a lawful act or expression of will intended to have legal consequences. For example, a full interdict does not have the capacity to enter into or sign a contract. A limited interdict lacks capacity to make a juridical act pertaining to the property or aspects of personal care that the judgment of limited interdiction places under the authority of his curator. A judgment of interdiction may preserve some rights for the interdict.

Q. What is a curator?

A curator is the person appointed by the court in cases of interdiction to care for the interdicted person or his affairs, make decisions for the interdicted person, or to act in the place of the interdicted person.

Q. What are the duties and responsibilities of a curator?

The curator has the following duties and responsibilities:

– The curator is given authority to make either some (in cases of limited interdiction) or all (in cases of full interdiction) decisions for the interdicted person.

– In making these decisions the curator must exercise reasonable care, diligence and prudence, and must act in the best interest of the interdicted person.

– A curator must file an annual report with the court.

– The annual report in regard to finances lists the assets of the interdicted person and all expenditures made by the curator on behalf of the interdicted person as well as any property that has been sold or purchased.

– The annual report in regard to the person provides information on how the interdicted person is doing physically and mentally, the course of any medical treatment, and any changes in the interdict’s residence.

Q. What kind of decisions does the curator make?

A. These decisions could include medical decisions, such as giving access to medical records and consenting to treatment; placement decisions, such as where the person will live; legal decisions, such as filing a lawsuit on behalf of the interdicted person; and financial decisions, such as signing checks, investing funds and paying bills. Some decisions may require court approval.

 Q. What is the curator’s liability?

A. A curator is not personally responsible to a third person for any acts or obligations of the interdicted person just because he/she is curator. A curator may be responsible for damages resulting from his/her own acts, omissions or negligence regarding the interdicted person.

Q. What is an undercurator?

A. The undercurator is a person appointed by the court to make sure that the curator is acting in the best interest of the interdicted person and performing the curator’s duties.

Q. What are the duties or responsibilities of an undercurator?

A. The undercurator is given full access to the interdicted person and his medical records and must review all accounts and personal reports filed by the curator. The undercurator has the duty to notify the court if he/she has reason to believe the curator has failed to perform any duties imposed upon the curator by law. However, should the curator be unable or unwilling to fulfill his duties, the undercurator does not automatically take over for the curator. The undercurator has the responsibility to inform the court of the problem and may request that the court appoint someone else to serve as curator.

Q. Can a person be placed in a nursing home or residential facility if an interdiction has been filed against him? What about a person already interdicted?

A. The mere filing of a Petition for Interdiction does not grant any power to a person to place another person in a nursing home or residential facility. If, after a hearing, the person is found incapable of caring for his person, a change of placement can be made by the curator as long as it is in the best interest of the interdicted person. However, neither the curator nor the court can admit or commit a person to a mental health treatment facility, without following the procedures required under mental health law, and meeting the criteria of that law.

Q. Can an interdiction be revoked or made less/more restrictive?

A. Yes. If it can be shown that the terms of the original judgment are either excessive or insufficient, or that the ability of the interdicted person to care for himself or his property has changed enough to warrant modification or termination, a motion can be made to the court to review the interdiction, and either make changes or revoke the interdiction.

Q. What are some things that I can do in advance to postpone or avoid being interdicted?

1. Get a power of attorney (sometimes called a procuration or mandate) or an advance directive which gives someone of your choosing the right to make medical, mental health and/or financial decisions for you should you become incapable of doing so yourself. You should consult an attorney to make sure the power of attorney will do what you intend it to do;

2. Place your money and/or property in trust pursuant to Louisiana law;

3. Complete a living will and make your wishes known to your family, friends and physicians about end-of-life choices;

4. Choose a person to become your curator should you ever need to be interdicted. Put your choice in writing.

Q. What are some alternatives to interdiction?

1. Powers of attorney for health and/or finances in which another person is designated in writing to make decisions for you when you are unable to do so yourself;

2. Depending on the problems that the person is having, a judicial commitment;

3. Social Security’s representative payee program;

4. Utilization of community resources, such as home health services, on-call or day programs; or

 5. Services from local or state agencies may accomplish what is necessary to care for the person in the least restrictive manner.

Q. What is judicial commitment?

Any person can file a petition for judicial commitment that state facts that a person is suffering from mental illness which contributes or causes that person to be a danger to himself or others or gravely disabled. If, after a court hearing, the judge concludes by clear and convincing evidence that the person is dangerous to himself, dangerous to others, or is gravely disabled as a result of substance abuse or mental illness, the court may render a judgment of commitment to a treatment facility which is medically suitable and the least restrictive of the person’s liberty.

Q. How long does a judicial commitment last?

Generally, all judicial commitments shall be reviewed by the Court issuing the order for commitment every ninety days and generally, all judicial commitments shall be for a period not to exceed 180 days, at which time the commitment expires by law, unless another petition for judicial commitment has been filed against the person. However, a person who is judicially committed may be discharged by the director of the treatment facility sooner than that if the person’s condition improves.

Q. What is the difference between an interdiction and a judicial commitment?

 A. With an interdiction, another person is appointed to make those decisions that the interdicted person is no longer capable of making regarding his person and property. With a judicial commitment, a court is forcing mental health treatment and placement for a limited time on an individual unwilling to access the care for himself, where that individual is either a danger to himself, a danger to others, or gravely disabled.

Q. How much does an interdiction cost?

The cost of an interdiction depends on the circumstances of each case and can vary greatly depending on the physical and mental condition of the person, the person’s family situation, and the amount of property the person has. It is especially important that you discuss the total cost of the interdiction with your attorney before you proceed.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions regarding Interdiction, contact The Sunseri Law Firm, LLC today to schedule a consultation.

POWER OF ATTORNEY

A Power of Attorney (“POA”) is a legal document granting another person (”Agent”) the authority to act in certain legal or financial matters . Agent or “attorney-in-fact,” is given the power to render decisions and take actions on behalf of the person (“Principal”) creating the POA.

The Power of Attorney can be limited or broad. The POA  can be temporary or permanent. The Principal has the ability to revoke or modify the POA at any time, provided that the Principal has the mental capacity as determined by a certified medical professional.

There are various types of Powers of Attorney, including general, durable and limited. A general POA gives the Agent broad authority to make decisions. A Durable Power of Attorney remains in effect even if the Principal becomes incapacitated. A Limited POA restricts the Agent’s authority to conduct specific tasks or for a limited period of time.

A Power of Attorney can be used for a variety of reasons, such as managing financial affairs, making healthcare decisions, or directing legal matters. It is important to carefully consider who you choose as your agent and to clearly outline their responsibilities and limitations in the power of attorney document.

It is also important to consult with a lawyer when creating a Power of Attorney to ensure that the POA meets all legal requirements and adequately protects the interests of the Principal. Without a POA, it may be necessary for a court to appoint a Curator to make decisions on behalf of an incapacitated individual in a costly and time-consuming interdiction process.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation for a Power of Attorney.