The Power of Attorney

Cook, Yancey, King & Galloway
W. Lake Hearne
lake.hearne@cookyancey.com

The common law terms used when referring to a grant of authority are the “power of attorney” whereby the “principal” grants authority to his “agent” to act on his behalf. Under Louisiana law, this grant of authority is most commonly in the form of a “procuration” (which is a document only signed by the principal) granting authority to a “representative.” Less common in Louisiana is a “mandate” (which is a contract signed by both the principal and his “mandatary”). This column does not address the subtle differences between these two Louisiana forms. For purposes of this discussion, the common law terms principal (“P”), agent (“A”) and POA (“POA”) are used.

Form. A POA need not be in any particular form or writing except when the law requires a certain form for the act being taken by P acting through A. In those situations, the POA must be in that same form. For instance, an act affecting real estate must be in writing, and therefore, a POA granting authority to deal with real estate also must be in writing. However, a mere “writing” may be insufficient. For instance, an act of donation of land must be by authentic act (in the presence of two witnesses and a Notary), and accordingly, a POA granting A the authority to make a donation of P’s land also must be an authentic act.

Certain Authority Must Be Express. P may confer A with general authority to do whatever is appropriate under the circumstances. However, certain authority must be expressly conferred: purchase, sale, mortgage, lease, donation of immovable property, and acceptance or renunciation of a succession. Each of these acts is exclusive. For instance, the authority to sell does not include the power to donate or lease, nor does the authority to borrow include the authority to mortgage. Another authority that must be granted expressly is the authority for A to contract with himself. Thus, even if a POA authorizes A to make a sale or donation of property without specifying to whom the sale or donation may be made, A nevertheless may not sell or donate to himself without an express grant of authority to self-deal.

Conditional POA. A POA may be conditioned upon the disability of P. In that case, the POA becomes effective upon the certification of two physicians (or, if stipulated therein, the attending physician) that P is disabled, and thereafter the POA is governed by the rules applicable to other powers of attorney.

Situations Where POA is Limited. There are several instances where the use of a POA is prohibited or limited. A last will and testament of P may not be executed by A. A trustee may not delegate the performance of duties and acts except those ministerial acts that he could not reasonably be required to perform personally. A resident succession representative, tutor or curator may appoint an agent to act only if he will be temporarily absent from the state. A nonresident succession representative, tutor or curator may appoint a resident agent to act for him. A resident curator may appoint an agent to act only if he will be temporarily absent from the state. A nonresident curator may appoint a resident agent to act for him. In both instances the POA must be filed in the tutorship record.

Unknown Termination. If A does not know of the termination of the POA, a contract entered into with a third person in good faith is enforceable. These are subjective facts proof of which are problematic.

Termination. A common term heard in connection with powers of attorney is the “durable” POA. In some jurisdictions, a POA terminates upon the incapacity of P. In those jurisdictions, if the POA expressly provides that A’s authority shall continue in effect even after P’s incapacity, it is referred to as a “durable” POA. The “durable” POA is the default provision under Louisiana law. A Louisiana POA need not contain special language to continue in effect after P’s incapacity. Even a durable POA eventually terminates. Causes of automatic terminations are: (a) death of P, (b) the qualification of a curator if P is interdicted by a court, (c) death or interdiction of A.

Revocation. Another method by which a POA is terminated is by revocation. Generally, a POA may be revoked by P at any time, although there are limited circumstances under which the parties may agree that a POA can be irrevocable for a certain time.