Louisiana Notary

A Civil Law Tradition

Mandate and Representation

Mandate and Representation – Procuration may be conditional on disability

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Mandate and Representation – Procuration may be conditional on disability

R.S. 9:3890 Conditional procuration. A. The term “conditional procuration” means a written document stating that the procuration becomes effective upon the disability of the principal.

B. In a conditional procuration, the disability of a principal shall be established by an authentic act as described in Subsection C, stating that due to any infirmity, the principal is unable consistently to make or to communicate reasoned decisions regarding the care of the principal’s person or property.

C. The authentic act shall be signed by two physicians licensed to practice medicine by the Louisiana State Board of Medical Examiners who have personally examined the principal. However, if the executed conditional procuration so provides, the authentic act may be signed by the attending physician who is licensed to practice medicine by the Louisiana State Board of Medical Examiners and the agent appointed in the conditional procuration.

D. A conditional procuration which has been entered into under the provisions of this Section and which has become effective as provided in this Section shall have the same effectiveness as any other procuration.

E. Except as otherwise specifically provided in this Chapter, a conditional procu­ration which becomes effective upon a determination of disability shall be subject to all of the provisions of the Louisiana Civil Code and all other provisions of law which govern procuration.

Mandate and Representation – Procuration defined

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Mandate and Representation – Procuration defined

Art. 2987. Procuration defined; person to whom addressed. A procuration is a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations. The procuration may be addressed to the representative or to a·person with whom the representative is authorized to represent the principal in legal relations.

Revision comments-1997. (a) This provision is new. It is based on Article 2985 of the Louisiana Civil Code of 1870. The civilian term “procuration” has been used instead of the colloquial “power of attorney,” which is a common-law term of art. This usage avoids confusion with common-law institutions and the designation of the representative as “attorney.”

(b) A procuration is a “unilateral juridical act” that confers on the representative authority to represent the principal in legal relations. It differs from a mandate which is a “contract” that confers on the mandatary authority to transact one or more affairs for the principal. See Civil Code Article 2989 (Rev.1997). infra.

(c) The procuration is not required to be in a particular form. Nevertheless, when the law prescribes a certain form for the authorized act, a procuration authorizing the act must be in the same form. See Civil Code Article 2993 (Rev. 1997), infra.

(d) The recipient of the procuration does not bind himself to do anything. However, if he accepts the procuration or acts accordingly, a contract may be formed between the principal and the representative. This contract may be a mandate or another nominate contract.

(e) The term “legal relations” includes creating, modifying, or terminating “legal relations.”

Art. 2988. Applicability of the rules of mandate, A procuration is subject to the rules governing mandate to the extent that the application of those rules is compatible with the nature of the procuration.

Mandate and Representation – Representation defined

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Mandate and Representation – Representation defined

Art. 2985. Representation. A person may represent another person in legal relations as provided by law or by juridical act. This is called representation.

Art. 2986. The authority of the representative The authority of the representative may be conferred by law, by contract, such as mandate or partnership, or by the unilateral juridical act of procuration.

Revision Comments – 1997 (a) In the Louisiana Civil Code of 1870, the words “power of attorney,” “letter of attorney,” “mandate,” “procuration,” and “agency” were used interchangeably. However, each of these words also has a technical meaning that differentiates one from another. Following the legislative technique employed in modern civil codes, in this revision, the word “mandate” applies exclusively to the “contract of mandate,” whereby a person, called principal, authorizes another person, called man­datary, to transact an affair on behalf of the principal. The word “agency” has not been used in this revision, in an effort to prevent confusion with the common-la-w institution of agency. The words “letter of attorney” and “power of attorney” in the Louisiana Civil Code of 1870 are a translation from the French “procuration.” These words connote a unilateral juridical act whereby a person, called principal, confers authority on another person to represent him in legal relations. Thus, a person may have authority to represent another person by virtue of a contract of mandate or by virtue of a unilateral juridical act.