4.2 Powers of Attorney (Mandates)

Powers of Attorney Are Called Mandates

Louisiana does not use the common-law label "power of attorney" in its Code. A power of attorney is a mandate (also called a procuration when it is the written instrument), governed by CC Articles 2989 through 3034. The vocabulary is itself tested:

Form Follows Function (CC Article 2993)

CC Article 2993 states the mandate is not required to be in any particular form — orally granted mandates are conceivable. Nevertheless, when the law prescribes a certain form for the underlying act, the mandate authorizing that act must be in that same form. So a mandate to sell immovable property, which itself needs authentic form to be recorded, must be granted by authentic act.

Express-Authority Articles (the heart of the exam material)

Louisiana protects principals by demanding that the riskiest powers be stated expressly in the procuration — they are never implied from general language. Two articles dominate the exam.

CC Article 2996 — Alienate / acquire / encumber / lease. Authority to alienate (sell, exchange), acquire, encumber (mortgage, pledge), or lease a thing must be given expressly. The Code adds that neither the property nor its location need be specifically described, so a general grant of express alienation authority over "all my immovables" is sufficient.

CC Article 2997 — Acts requiring express authority. Authority must be given expressly to:

This is exactly why general mandates are discouraged in Louisiana: a broad "do anything" grant silently omits these listed powers, so the agent literally cannot make gifts, accept an inheritance, or sign an authentic act on the principal's behalf.

Durability and Capacity

Louisiana mandates are durable by default in a key sense: CC Article 3026 provides that the mandatary's authority is not terminated by the principal's later incapacity, disability, or death until the mandatary knows of it (or should know). Louisiana does not require the special "durable" magic words used in common-law states; the procuration continues through the principal's incapacity unless its own terms say otherwise.

Termination (CC Arts. 3024-3030)

Health-Care and Witness Points

• A mandatary who is a party to the transaction cannot serve as one of the two witnesses to the authentic act they are signing.
• For a mandate to sell real estate, best practice is to record the procuration in the conveyance records of the parish where the property sits, and to record any revocation in authentic form so third persons receive public notice.

Mandatary's Duties and the Account Obligation

Once authority is granted, the mandatary owes the principal fiduciary duties. Under the Code, the mandatary must perform the mandate with prudent administration, must use the authority only for the principal's benefit, and must account for everything received in the course of the mandate. A mandatary who acts beyond the granted authority binds the principal only if the principal ratifies the act, or if the third person reasonably relied on apparent authority the principal created.

These duties matter on the exam because they explain why Louisiana insists on express grants for sensitive powers: the law channels the agent's broad fiduciary loyalty through narrowly stated authority.

Multiple Mandataries and Substitution

When a principal names two or more mandataries without specifying how they act, the Code presumes they may act separately, each binding the principal, unless the procuration requires them to act jointly. A mandatary may appoint a substitute to perform the mandate unless the principal prohibited substitution; if substitution was authorized, the mandatary answers for the substitute only when the mandatary was negligent in the choice. Test items sometimes hinge on whether co-agents must sign together — absent contrary language, they need not.

Worked Scenario

A daughter holds a "general power of attorney" and tries to gift $20,000 from her incapacitated father's account to herself. Because CC Art. 2997 requires express donation authority, and the general procuration never granted it, the gift is unauthorized even though the document looks broad — and her self-dealing also breaches the fiduciary duty to act for the principal's benefit. The exam rewards spotting both the missing express grant and the conflict of interest.

Common Traps

• Calling the document a "power of attorney" on a vocabulary question instead of a mandate or procuration.
• Assuming a broad mandate silently includes donation, succession-acceptance, or authentic-act authority — it does not.
• Believing co-mandataries must always act jointly — they may act separately unless the procuration says otherwise.
• Forgetting that the mandate persists through the principal's incapacity until the mandatary knows of the death or interdiction.