A Louisiana durable power of attorney form is a document that grants someone the legal authority to act and make decisions on behalf of another person in the state of Louisiana. The person that gives the authority is called “the principal,” while the person who receives it is called “the agent.”
The term “durable” indicates that the form will remain in effect if the principal becomes incapacitated or unable to decide for themselves. That’s why appointing a responsible and trustworthy agent is essential for a durable power of attorney form.
Laws
- Statutes: Civil Code, Title XV, Chapter Two (including Civ. Code Ann. Art. 2989 and Civ. Code Ann. Art. 3032).
- Presumed Durable: Yes – durability presumed (Art. 3026).
- Signing Requirements: Requires signature of the principal and two witnesses.
- Notarization: Requires notarization.
- Statutory Form: No.
Definitions
Under Louisiana law, the term “power of attorney” is not widely used. Instead, “representation,” “procuration,” and “mandate” are more common.
A procuration is a unilateral juridical act through which someone (the principal) confers authority to another person (the representative) to represent them in legal relations, which generally do not include medical matters.
A mandate is a contract that allows someone (the principal) to confer authority to another person (the mandatary) to conduct transactions on various affairs of the principal.
Because a procuration does not include medical decisions, and because a health care power of attorney is referred to as a “mandate” in the Louisiana State Elder Commission, we will focus closely on mandates.
Durable – “In the absence of contrary agreement, neither the contract nor the authority of the mandatary is terminated by the principal’s incapacity, disability, or other condition that makes an express revocation of the mandate impossible or impractical”. (Art 3024)
Power of Attorney – “A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” (Art. 2989)
Specific Powers and Limitations
Agent’s Authority
As per Art. 2994, the agent granted general authority by the principal may perform any necessary actions as per the mandate.
However, there are certain actions for which the agent must have express authority from the principal. As per Art. 2997, these actions include:
- Making an inter vivos donation
- Accepting or renouncing a succession
- Contracting a loan
- Acknowledging or making remission of a debt or becoming a surety
- Drawing or endorsing promissory notes and negotiable instruments
- Entering into a compromise or referring a matter to arbitration
- Preventing or limiting reasonable communication, visitation, or interaction between the principal and a relative by blood, adoption, or affinity within the third degree, or another individual who has a relationship based on or productive of strong affection.
Revocation and Termination
Steps Needed to Revoke
To revoke a Louisiana Durable Power of Attorney, you need to follow these steps:
Step 1. Provide a written notice of revocation to the agent and any third parties acting under the power.
Step 2. Retrieve all copies of the document from the agent and any institutions where it was presented.
Step 3. If applicable, file the revocation notice with the same office where the original document was recorded.
Considerations
- Causes of termination include the death of the principal or the mandatary, interdiction of the mandatary, and qualification of the curator after the interdiction of the principal. (Art. 3024)
- The principal has the power to terminate the mandate and the authority of the mandatary at any time. (Art. 3025)
- If the mandate is in the interest of the principal and that of the mandatary or a third party, it may be irrevocable if the parties agree to it. (Art. 3025)
- In the absence of a contrary agreement, neither the contract nor the authority of the mandatary is terminated by the principal’s incapacity, disability, or other condition that makes an express revocation of the mandate impossible or impractical. (Art. 3026)
- Acts performed in good faith without knowledge of termination are binding to the principal and their successors in interest.
Cost Considerations
Notary fees: Document notarization is mandatory, with costs ranging from $10 to $25 per signature.
Recording fees: If the original document was recorded, the revocation should be, too, for $25 to $50, depending on the parish.
Safekeeping and Registration
Louisiana does not have a statewide registry for durable powers of attorney. Therefore, the principal must keep the original document in a safe, accessible location and inform trusted individuals, such as family members or an attorney, of its location.
Additional Resources
- Louisiana State Bar Association – A voluntary organization of lawyers that aims to promote the practice of law and improve the administration of justice.
- Southeast Louisiana Legal Services – A non-profit organization providing free legal information and services to low-income individuals and families.
- Louisiana Attorney General – Chief legal officer of the state responsible for providing legal advice and representation to the state government and its agencies.
