HLS 14RS-2081 ORIGINAL
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Regular Session, 2014
HOUSE BILL NO. 1133
BY REPRESENTATIVE TIM BURNS
(On Recommendation of the Louisiana State Law Institute)
CIVIL/MANDATE: Provides with respect to review of the actions of a mandatary
AN ACT1
To enact Chapter 2-A of Code Title XV of Code Book III of Title 9 of the Louisiana2
Revised Statutes of 1950, to be comprised of R.S. 9:3851 through 3856, and to3
amend and reenact Civil Code Article 3029 and R.S. 6:311.1 and4
333(B)(introductory paragraph), relative to powers of attorney for the elderly; to5
provide for the filing of an action to review the acts of a mandatary; to provide for6
contents of the petition, service, and venue; to provide for the motion to dismiss; to7
provide for the substitution of parties; to provide for the relief the court may grant8
and the actions the court may take; to provide for the acts of the mandatary that9
constitute irreparable injury; to provide for payment of costs and attorney fees; to10
provide for exclusions and the applicability of the action; to provide for termination11
of the mandate; to provide for written notice to federally insured financial12
institutions; to provide for termination or modification; to provide for a bank's13
disclosure of certain records; and to provide for related matters.14
Be it enacted by the Legislature of Louisiana:15
Section 1. Chapter 2-A of Code Title XV of Code Book III of Title 9 of the16
Louisiana Revised Statutes of 1950, comprised of R.S. 9:3851 through 3856, is hereby17
enacted to read as follows:18 HLS 14RS-2081 ORIGINAL
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CHAPTER 2-A. ACTION TO REVIEW THE ACTS OF A MANDATARY1
§3851. Who may file; petition contents; service; venue2
A. When a principal is a natural person for whom a curator with appropriate3
authority has not qualified, any of the following persons may petition a court on4
behalf of the principal to review the acts of the principal's mandatary and to grant5
relief authorized by this Chapter:6
(1) A person authorized to make healthcare decisions for the principal.7
(2) A spouse, a parent, or a descendant of the principal.8
(3) A presumptive heir or legatee of the principal.9
(4) A person named as a beneficiary to receive any real or personal right10
upon the death of the principal.11
(5) A trustee or beneficiary of an inter vivos or testamentary trust created by12
or for the principal.13
(6) A caregiver of the principal.14
(7) Any other person with sufficient interest in the welfare of the principal.15
B. The petition shall be verified and shall name as defendants the principal,16
the mandatary, and any other person against whom relief is sought. The petition17
shall state with particularity the facts establishing the petitioner's right to bring the18
action, the reasons that a review of the acts of the mandatary is needed, and the relief19
sought.20
C. The principal shall be personally served with the citation and petition.21
Service on the principal through a mandatary shall not be effective.22
D. The action shall be filed in the parish where the principal is domiciled,23
where the principal resides if without a domicile in this state, or where the principal24
is physically present or where immovable property of the principal is located if the25
principal is without either a domicile or a residence in this state.26
Comments - 201427
(a) Because a mandate is generally durable under Louisiana law, it is likely28
that a mandatary will continue to act for a principal after the principal is no longer29
able to monitor the performance of the mandatary. This Chapter creates a new right30
of action to allow persons other than the principal to initiate an action against a31 HLS 14RS-2081 ORIGINAL
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mandatary. This right of action is not available when the principal is not a natural1
person, or when a curator has qualified, as other law governs those claims. This2
Chapter has no impact on the authority that a principal has under any other law to3
control the actions of a mandatary, to terminate a mandate, or to recover property or4
damages from a mandatary; it merely authorizes additional parties to bring those5
claims on the principal's behalf.6
(b) Civil Code Articles 880 - 901 govern who is a presumptive heir.7
(c) Governmental agencies are omitted from the list of those who may file8
an action under this Chapter because they have authority to bring actions under other9
laws. See, for example, R.S. 14:67.21 (Theft of the assets of an aged person or10
disabled person), R.S. 14:93.3, (Cruelty to the infirmed), R.S. 14:93.4 (Exploitation11
of the infirmed), R.S. 15:1501-1511 (Adult Protective Services Act) and R.S.12
46:437.1 et seq. (Medical Assistance Programs Integrity Law).13
(d) As Civil Code Article 2988 generally applies the rules of mandate to14
procurations, an action under this Chapter may be brought against a representative15
with respect to a procuration. See R.S. 9:3856.16
(e) The principal must be named as a defendant and must be personally17
served with the petition and citation to ensure the principal has actual notice of the18
action. The petition may also name a person other than the mandatary and the19
principal as a defendant.20
(f) The petition must include a detailed explanation of the objectionable acts21
and the reasons for the objection.22
(g) This Chapter imposes a heightened pleading standard and requires a23
verified petition to discourage plaintiffs from filing frivolous suits. As an additional24
disincentive to frivolous suits, the prevailing party may be awarded costs and25
attorney fees under R.S. 9:3855.26
(h) Subsection D addresses venue only and is not intended to create personal27
jurisdiction over any defendant.28
(i) An action under this Chapter shall be by ordinary process, but the use of29
summary proceedings is available to address incidental questions arising in the30
course of the action. See C.C.P. Art. 2592(1).31
(j) R.S. 9:3854(D) permits a court to order injunctive relief without a32
showing of irreparable injury.33
§3852. Dismissal upon motion to dismiss filed by the principal34
A. If the principal files a motion to dismiss the action, the principal shall35
testify in person at the hearing on the motion or, with the agreement of the parties or36
for good cause shown, by visual remote technology or by deposition.37
B. The court shall grant the principal's motion to dismiss the action if it finds38
that the principal is able to comprehend generally the nature and consequences of the39
acts of the mandatary and that the mandatary's authority to act is not the result of40
fraud, duress, or undue influence.41 HLS 14RS-2081 ORIGINAL
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Comments-20141
(a) A principal may choose to file a motion to dismiss the action. Before2
ruling on the principal's motion to dismiss, the court must hold a hearing to3
determine whether the principal is aware of the acts of the mandatary and not subject4
to fraud, duress, or undue influence, is able to comprehend generally the nature and5
consequences of the acts of the mandatary, and appears able to make reasoned6
decisions.7
(b) When a principal is aware of the acts of the mandatary, and is not subject8
to fraud, duress, or undue influence, and is able to comprehend generally the nature9
and consequences of the acts of the mandatary, the court must grant the principal's10
motion to dismiss.11
(c) The principal must be present in person at the hearing to allow the court12
to make the determinations described in this Section. The parties may agree to, or13
the court may order, remote testimony. The standard for permitting a principal to be14
absent from the proceeding, for good cause shown, is a lower standard than is15
required by Code of Civil Procedure Article 1633.1, which allows testimony by16
visual remote technology under compelling circumstances. This lower standard17
allows greater use of remote testimony in an appropriate case.18
§3853. Substitution19
Upon the interdiction or death of the principal, the court shall allow a curator20
with appropriate authority or the principal's legal successor to be substituted for the21
plaintiff.22
Comments - 201423
(a) The principal's death terminates the mandate. This Section permits the24
principal's legal successor to be substituted for the petitioner in an action under this25
Chapter. The legal successor may then elect to continue or to dismiss the action.26
Conflicts of interest may arise when the succession representative is also the27
defendant in the action. Under other laws, presumptive heirs and legatees may28
challenge the appointment of a succession representative they deem to be unfit or29
may bring an action against a succession representative.30
(b) Full interdiction also terminates the mandate. A court may terminate a31
mandate in a limited interdiction by placing the property subject to the mandate32
under the authority of a curator. A curator, once qualified, can be substituted for the33
petitioner and may then elect to continue or to dismiss the suit. Temporary or34
preliminary interdictions have no effect on the action; it remains available during a35
temporary or preliminary interdiction.36
(c) Allowing substitution avoids res judicata issues. The existing action37
continues with the new parties. Where prescription was interrupted by the38
commencement of an action under this Chapter, that interruption continues.39
§3854. Relief40
A. If the court finds that a mandatary has violated a duty or failed to perform41
any obligation as a mandatary, the court may:42
(1) Grant any relief to which the principal is entitled.43 HLS 14RS-2081 ORIGINAL
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(2) Enjoin the mandatary from exercising all or some of the powers granted1
by the mandate.2
B. While the action is pending, the court may do any of the following:3
(1) Order an accounting from the mandatary.4
(2) Order, without first holding a contradictory hearing, a financial5
institution, a healthcare provider, or any other person to provide the financial,6
medical, or other information of any defendant to the action.7
(3) Appoint a qualified person to investigate the allegations of the petition8
and to report the findings.9
(4) On its own motion, order other appropriate discovery.10
(5) Enjoin the mandatary from exercising all or some of the powers granted11
by the mandate during the pendency of the action.12
(6) Appoint a person to exercise some or all of the authority granted by the13
mandate, including authority to perform routine financial transactions and to make14
healthcare decisions, if there is no successor or substitute mandatary named in the15
mandate who is able or willing to serve, or if no law otherwise provides a person to16
act.17
C. In reaching its decision, the court shall consider the mandate and may18
consider any other relevant factors, including any of the following:19
(1) The expressed wishes of the principal.20
(2) The known or reasonable expectations of the principal.21
(3) The best interests of the principal.22
(4) Any will, trust, or beneficiary designation executed by the principal.23
(5) The principal's history or pattern of donations inter vivos.24
(6) Physical, financial, or psychological abuse of the principal.25
(7) Fraud, duress, or undue influence.26
(8) The principal's regular contact with family and friends other than the27
mandatary.28 HLS 14RS-2081 ORIGINAL
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(9) The ability of the principal to comprehend generally the nature and1
consequences of the acts of the mandatary.2
(10) The donee's knowledge or imputed knowledge that a donation was not3
for the benefit or gratification of the principal.4
(11) The good or bad faith of a defendant.5
D. Unauthorized acts by or with the consent of a mandatary are subject to6
injunctive relief without a showing of irreparable injury.7
Comments - 20148
(a) This Chapter allows a person other than the principal to ask for court9
review of the acts of a mandatary. It does not create new standards of behavior for10
the mandatary. After a hearing, a court can order any relief to which the principal11
is entitled if the principal had brought the claim against the mandatary.12
(b) A court may take actions normally reserved to the principal such as13
terminating some or all of the authority granted by the mandate or collecting funds14
due to the principal. If a court enjoins a mandatary from acting, this Section15
authorizes the court to appoint a person to handle the principal's affairs until16
disposition of the action. A principal apparently unable to make reasoned decisions17
may also be unable to name a new mandatary.18
(c) This Section expressly authorizes the court to gather information from19
financial institutions and healthcare providers, and to appoint an investigator. R.S.20
13:3715.1 permits a court to issue an order for the production of a patient's records,21
but only after a contradictory hearing. This Section, however, allows the court to22
obtain medical records without a contradictory hearing. A court order to provide23
financial records under this Section is not subject to the requirements of R.S. 6:333.24
(d) The list of factors for the court to consider offers guidance. It is25
illustrative and not exhaustive.26
(e) An action under this Chapter is by ordinary process, but summary27
proceedings are available to address incidental questions arising in the course of the28
action. See C.C.P. Art. 2592(1).29
(f) Code of Civil Procedure Article 3601 allows a court to issue an injunction30
"where irreparable injury, loss, or damage may otherwise result to the applicant or31
in other cases specifically provided by law. . .". Subsection D permits a court to32
order injunctive relief without a showing of irreparable injury.33
§3855. Payment of costs and attorney fees34
The court may render judgment for costs and attorney fees, or any part35
thereof, against any party. Nevertheless, costs or attorney fees shall not be awarded36
to a petitioner when the petition is dismissed on the merits.37 HLS 14RS-2081 ORIGINAL
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Comments - 20141
(a) Court costs and attorney fees are allowed to discourage frivolous suits or2
to reimburse the petitioner who initiates an action under this Chapter to benefit the3
principal.4
(b) The principal may be responsible for reimbursing the mandatary for5
expenses incurred in carrying out the mandate, as provided in Civil Code Article6
3012.7
§3856. Applicability8
A. This Chapter applies to a procuration and a representative in the same9
manner as it applies to a mandate and a mandatary, respectively, and allows an action10
against a representative for violating any duty or failing to fulfill any obligation in11
the procuration.12
B. This Chapter does not apply to a mandate to the extent that the mandate13
is irrevocable as provided by law.14
Comments - 201415
(a) Civil Code Article 2988 subjects a procuration to the rules governing16
mandate.17
(b) This Chapter creates a new right of action to protect the interests of a18
principal when a mandatary is no longer prudently fulfilling the mandate. This19
protection may not be appropriate for all mandates. This Section excludes from this20
protection a mandate made in the interest of the mandatary or a third person when21
the principal agrees that the mandate is irrevocable and when the law allows the22
mandate to be irrevocable.23
(c) Civil Code Article 3025 governs when the parties may agree to make a24
mandate irrevocable. A common occasion for irrevocability involves creditors who25
require an irrevocable mandate in case a debtor defaults. The "third party" identified26
in Civil Code Article 3025 could be a creditor.27
Section 2. Civil Code Article 3029 is hereby amended and reenacted to read as28
follows:29
Art. 3029. Termination by the mandatary30
The mandate and the authority of the mandatary terminate when he the31
mandatary notifies the principal of his resignation or renunciation of his authority.32
When a mandatary has reasonable grounds to believe that the principal lacks33
capacity, the termination is effective only when the mandatary notifies another34
mandatary or a designated successor mandatary. In the absence of another35
mandatary or a designated successor mandatary, the termination is effective when36 HLS 14RS-2081 ORIGINAL
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the mandatary notifies a person with a sufficient interest in the welfare of the1
principal.2
Comment - 20143
The duty of the mandatary to notify someone other than the principal when4
the mandatary believes the principal lacks capacity does not impose a duty on the5
person notified to accept any responsibility or to take any action. The mandatary6
remains responsible for the consequences of his failure to fulfill the mandate until7
proper notice is given.8
Section 3. R.S. 6:311.1 and 333(B)(introductory paragraph) are hereby amended and9
reenacted to read as follows:10
§311.1. Powers of attorney, procuration, and mandate; written notice of revocation11
A.(1) Notwithstanding any provision of law to the contrary, any federally12
insured financial institution presented with an original or certified true copy of a13
power of attorney, procuration, or mandate that is sufficient to authorize the named14
agent, representative, or mandatary to transact business in a deposit account, with a15
certificate of deposit, or with other funds on deposit, or sufficient to authorize access16
to a safe deposit box, may rely on the authority designated in such the power of17
attorney, procuration, or mandate as being in full force and effect, unless an officer18
of the federally insured financial institution receives written notice that such the19
power of attorney, procuration, or mandate has been terminated or revoked,20
modified, or terminated, and the institution has had reasonable opportunity to act on21
it.22
(2) Written notice shall be deemed to be received upon receipt by an officer23
of the federally insured financial institution.24
(3) For the purposes of this Section, "written notice" shall mean a court order25
or other writing addressed to the federally insured financial institution indicating that26
the principal power of attorney, procuration, or mandate has been revoked, modified,27
or terminated, the authority of the agent, or indicating that one of the events of28
termination as specified in including a termination pursuant to Civil Code Article29
3024 has occurred.30 HLS 14RS-2081 ORIGINAL
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B. A federally insured financial institution shall not be liable for transactions1
or activity by an agent, representative, or mandatary occurring prior to the receipt of2
written notice and a reasonable opportunity to act on it.3
* * *4
§333. Disclosure of financial records; reimbursement of costs5
* * *6
B. Notwithstanding any other provision of law to the contrary, except R.S.7
9:151 et seq. and 3854(B)(2), R.S. 13:3921 et seq., Code of Civil Procedure Article8
2411 et seq., R.S. 46:236.1.4, and R.S. 47:1676(D)(2) and 1677, no bank or its9
affiliate shall disclose any financial records to any person other than the customer to10
whom the financial records pertain, unless such financial records are disclosed:11
* * *12
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Tim Burns HB No. 1133
Abstract: Provides protection of the elderly from abuses by a mandatary by authorizing an
individual with an interest to request the court to review the acts of the mandatary
and to grant appropriate relief.
Proposed law (R.S. 9:3851) authorizes certain individuals with an interest in the principal's
welfare to file an action on the principal's behalf requesting the court to review the mandate's
acts and grant appropriate relief. It also specifies the required contents of the petition, and
service and venue requirements.
Proposed law (R.S. 9:3852) provides that if the principal files a motion to dismiss the action,
the principal shall testify in person or in certain cases by remote technology or deposition,
and also provides that the court shall grant the motion to dismiss if the principal is able to
comprehend generally the nature and consequences of the mandatary's act and is not subject
to fraud, duress, or undue influence.
Proposed law (R.S. 9:3853) provides for substitution of the plaintiff by a curator or the
principal's legal successor upon the principal's interdiction or death.
Proposed law (R.S. 9:3854) provides that if the court finds that the mandatary has violated
a duty, it may grant any relief to which the principal is entitled and may also enjoin a
mandatary from exercising some or all of the powers granted under the mandate. It also
authorizes the court to take certain actions while the action is pending, including discovery,
disclosure of information by financial institutions and healthcare providers, an accounting
by a mandatary, temporarily enjoining a mandatary from exercising all or some of the HLS 14RS-2081 ORIGINAL
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powers granted by the mandate and appointing someone to temporarily exercise some or all
of the powers granted by the mandate.
Proposed law lists certain factors for the court to consider in reaching its decision, including
the principal's express wishes, fraud, duress, or undue influence, and the principal's ability
to comprehend generally the nature and consequences of the mandatary's acts. It further
specifies that a mandatary's unauthorized acts constitute irreparable injury for purposes of
injunctive relief.
Proposed law (R.S. 9:3855) provides that the court may award costs and attorney fees
against any party but not when the petition is dismissed on the merits.
Proposed law (R.S. 9:3856) provides that proposed law is also applicable to a procuration
and representative but is not applicable when the mandate is irrevocable by law.
Present law (C.C. Art. 3029) provides that the mandate and the authority under the mandate
terminate upon the mandate's notice of resignation to the principal.
Proposed law retains present law and adds that when the mandatary has reasonable grounds
to believe that the mandatary lacks capacity, the termination is effective upon notice to other
specified individuals.
Present law (R.S. 6:311.1) provides that a federally insured financial institution may rely on
an original or certified copy of a power of attorney that is sufficient to authorize the named
agent to transact business unless the institution receives written notice of the power of
attorney's revocation.
Present law specifies that written notice is a writing indicating revocation of the power of
attorney and that it has been received upon receipt by an institution's officer. It also relieves
the institution of liability for transactions occurring prior to the receipt of notice.
Proposed law retains present law, provides for applicability to "procuration" and "mandate",
expands "written notice" to include a court order, and expands applicability to notice of
modification and termination in addition to revocation.
Present law (R.S. 6:333(B)(intro. para.)) provides for the restrictions on a bank's disclosure
of a customer's records and exceptions to those restrictions.
Proposed law retains present law and adds as an additional exception, R.S. 3854(B)(2), that
authorizes the court to order disclosure of financial records when it finds that a mandatary
violated a duty under a contract of mandate.
(Amends C.C. Art. 3029, R.S. 6:311.1 and 333(B)(intro. para.); Adds R.S. 9:3851-3856)