In the state of Louisiana, power of attorney is also called a “mandate.” The point of a mandate is to allow a person to act as an agent, or mandatary, on behalf of another person. The person for whom the mandatary acts is called the principal. A mandatary can use a mandate to make financial, medical, parenting, real estate, tax or other decisions on the principal's behalf.
When Power Is Conferred
After the mandate form is completed and notarized, the mandatary is bound to act with prudence and diligence. They are responsible for any loss that the principal sustains if they fail to perform properly.
A mandatary who exceeds their authority is also responsible for any loss to the principal. A principal must reimburse the mandatary for expenses and charges they incur, as well as pay to the mandatary remuneration to which they are entitled.
The principal must reimburse and compensate the mandatary if the purpose of the mandate is not accomplished, and the failure is not the mandatary’s fault.
Durable Power of Attorney
A mandate is called “durable” because the power remains in effect even if the principal becomes incapacitated. The two main types of mandate are general for all affairs, and limited for specific affairs, such as financial matters. A principal typically grants a mandate to a person close to them, such as a spouse or family member.
A principal must expressly give authority to a mandatary for certain acts:
- Make an inter vivos donation to a new or existing trust and to impose such conditions on the donation.
- Accept or renounce a succession.
- Contract a loan, acknowledge or make remission of a debt, or become a surety.
- Draw or endorse promissory notes and negotiable instruments.
- Enter into a compromise or refer a matter to arbitration.
- Make a healthcare decision like surgery or medical expenses.
- Prevent or limit reasonable interaction between the principal and relative by blood, adoption or affinity within the third, or another person who has a relationship with the principal based on, or productive of, strong affection.
Advanced Medical Directives
A durable power of attorney or mandate for health care is a type of advanced medical directive. The other types of advanced medical directives are a living will form that allows a patient to list the care they want at the end of their life and a Do Not Resuscitate (DNR) order. A living will applies only if the person would not live without medical treatment.
In a mandate for health care, the mandatary makes medical decisions only when the principal cannot speak for themselves. The principal does not need to be at the end of their life for the mandatary to act on their behalf. For example, the mandatary could speak for the principal if they were in a coma and likely to recover.
Revocation of a Louisiana Power of Attorney
A principal can revoke a mandate at any time. The mandate can also expire on its own terms if it has a time limit or is limited related to the occurrence of a specific condition, like the principal recovering from a coma. Other events that terminate a mandate include:
- Death of the principal or mandatary.
- Interdiction of the mandatary. An interdiction is a court proceeding that involves the removal of the mandatary.
- Qualification of a curator, or guardian, after the interdiction of the principal.
A principal should revoke a mandate in a signed writing in the presence of a notary and two witnesses. There is no required form to revoke a mandate. A principal may record an act of revocation with their local court to put third parties on notice of the revocation.
Verifying the Revocation
Under state law, the principal must verify the delivery of the revocation to the mandatary. The principal must also verify the delivery of the revocation to third parties that relate to the mandate, such as the principal’s bank for a financial mandate or the principal’s hospital for a medical mandate.
Liability for Damage
If a party relies on the revoked mandate to act, they are not liable for any damage they may cause if they were not aware of the revocation. The mandate and the authority of the mandatary are not terminated by the principal’s incapacity, disability or other condition that makes an express revocation of the mandate impossible or impractical.
Challenging a Mandate Under Louisiana Law
When a mandatary is acting outside the scope of their authority, or not as a prudent and diligent person would act, another party can challenge the mandate. An interested party such as a child of the principal can file a civil suit against the mandatary in the court where the principal lives.
The court has the power to issue an injunction or a restraining order against the mandatary and can also require the mandatary to pay for the interested party’s attorney’s fees.
Court Interdiction if Mandatary Steps Down
If the mandatary must step down from their position, the court may hold an interdiction. An interdiction is necessary when a principal requires another person to act under a mandate because the principal is incapacitated. The court will determine who should be the curator for the principal.
The court’s decision in an interdiction will terminate the powers of the mandatary. The court will usually choose the spouse or a child of the principal as the curator. The exception is if the principal previously indicated they did not want these parties to make decisions for them.
Elder Abuse by Mandatary
The state can charge a mandatary with elder abuse if the mandatary takes actions to enrich themselves at the expense of the principal. Illegal actions can include:
- Writing checks to themselves or others.
- Withdrawing funds from the principal’s accounts for unauthorized purposes.
- Using credit or debit cards of the principal for unauthorized purposes.
- Selling or transferring the principal’s funds and property in a manner contrary to the principal’s wishes without getting the consent of the principal or providing them with information about the transactions.
A party damaged by the mandatary’s actions may have grounds to file a civil lawsuit against the mandatary. In a civil lawsuit, the court can issue an injunction to nullify the mandatary’s power so the mandatary can no longer act on behalf of the principal. The court may order the mandatary to return all the money and property they unlawfully spent or gave away.
- Louisiana Healthcare Connection: Advanced Medical Directives
- Louisiana Civil Code: Article 3026
- Louisiana Civil Code: Article 2989
- Louisiana Civil Code: Article 2997
- Louisiana Civil Code: Article 3001
- Louisiana Civil Code: Article 3008
- Louisiana Civil Code: Article 3012
- Louisiana Civil Code: Article 3025
- Louisiana Civil Code: Article 3024
- Louisiana Civil Code: Article 3028
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.