Louisiana Durable Power of Attorney

Introduction

Key Things to Know

1. 1

   A durable power of attorney lets someone act for you. It names an agent to handle your money, property, and business matters, and durable means the document keeps working even if you later become incapacitated. In Louisiana this instrument is a mandate, also called a procuration, and the agent is called your mandatary.

2. 2

   Louisiana calls it a mandate. Louisiana is a civil-law state and did not adopt the Uniform Power of Attorney Act, so under La. Civ. Code art. 2989 what other states call a financial power of attorney is a mandate: a contract by which you, the principal, confer authority on a mandatary to transact affairs for you.

3. 3

   It continues through your incapacity by default. Louisiana has no separate durable power of attorney device because, under La. Civ. Code art. 3024, a mandate terminates only on death of the principal or mandatary, interdiction of the mandatary, or qualification of a curator after the principal's interdiction. Your mere incapacity does not end it.

4. 4

   There is no set form generally, but form follows the act. Under La. Civ. Code art. 2993 the contract of mandate is not required to be in any particular form. But when the law prescribes a certain form for an act, a mandate authorizing that act must be in that same form.

5. 5

   Real estate needs an authentic act. A mandate used to transfer immovable (real) property must be by authentic act or by act under private signature under La. Civ. Code art. 1839. An authentic act is signed before a notary and two witnesses, and the instrument has effect against third persons only from filing for registry in the parish where the property sits.

6. 6

   Some powers need express authority. Under La. Civ. Code art. 2996, authority to alienate, acquire, encumber, or lease a thing must be given expressly. Under art. 2997, express authority is also required to make a donation, accept or renounce a succession, contract a loan, endorse negotiable instruments, enter a compromise or arbitration, make health care decisions, or limit communication with you.

7. 7

   It only works while you have capacity, and you can end it anytime. A mandate is a contract under La. Civ. Code art. 2989, so it can only be granted by a principal who still has capacity to authorize it. Under La. Civ. Code art. 3025 you may terminate the mandate and the mandatary's authority at any time.

Louisiana Requirements for Durable Power of Attorney

• Use a Written Mandate (Louisiana's Power of Attorney)

  Louisiana is a civil-law state that did not adopt the Uniform Power of Attorney Act. Under La. Civ. Code art. 2989, what other states call a financial or durable power of attorney is a mandate, also called a procuration: a contract by which you, the principal, confer authority on a mandatary (agent) to transact affairs for you.

• Match the Form to the Act You Authorize

  Under La. Civ. Code art. 2993, the contract of mandate is not required to be in any particular form. But when the law prescribes a certain form for an act, a mandate authorizing that act must be in that same form. Confirm the form each authorized act requires before you sign.

• It Continues Through Your Incapacity by Default

  Louisiana has no separate durable power of attorney device. Under La. Civ. Code art. 3024, a mandate terminates only on death of the principal or mandatary, interdiction of the mandatary, or qualification of a curator after the principal's interdiction. Your mere incapacity does not end it, so no separate durability language is needed.

• Future-Event Effective Date (Optional)

  If you want the mandate to take effect only on a future event such as your incapacity, Louisiana reaches that result through a suspensive condition. Under La. Civ. Code art. 1767, a conditional obligation dependent on an uncertain event may not be enforced until the event occurs, which mirrors a springing power of attorney.

• Authentic Act for Real Property (Notary and Two Witnesses)

  A mandate used to transfer immovable (real) property must be by authentic act or by act under private signature under La. Civ. Code art. 1839. An authentic act is signed before a notary and two witnesses. Under art. 2993 the mandate authorizing the transfer must be in that same form.

• File for Registry for Immovable Property

  Under La. Civ. Code art. 1839, an instrument transferring immovable (real) property has effect against third persons only from the time it is filed for registry in the parish where the property is located. File the mandate for registry in that parish before it is relied on for a real-property transaction.

• Certain Powers Need Express Authority

  Under La. Civ. Code art. 2996, authority to alienate, acquire, encumber, or lease a thing must be given expressly. Under art. 2997, express authority is also required to make a donation, accept or renounce a succession, contract a loan, endorse negotiable instruments, enter a compromise or arbitration, make health care decisions, or limit communication with you. Without express language, the mandatary cannot take these acts.

• Terminate the Mandate at Any Time

  Under La. Civ. Code art. 3025, you may terminate the mandate and the authority of the mandatary at any time. A mandate that also serves the interest of the mandatary or a third person may be made irrevocable by agreement. If the mandate was filed for registry, file the revocation in the same parish so it gives notice.