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Regular Session, 2014
HOUSE BILL NO. 1133
BY REPRESENTATIVE TIM BURNS
(On Recommendation of the Louisiana State Law Institute)
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
CHAPTER 2-A. ACTION TO REVIEW THE ACTS OF A MANDATARY19
§3851. Who may file; petition contents; service; venue20
A. When a principal is a natural person for whom a curator with appropriate21
authority has not qualified, any of the following persons may petition a court on22 ENROLLEDHB NO. 1133
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behalf of the principal to review the acts of the principal's mandatary and to grant1
relief authorized by this Chapter:2
(1) A person authorized to make healthcare decisions for the principal.3
(2) A spouse, a parent, or a descendant of the principal.4
(3) A presumptive heir or legatee of the principal.5
(4) A person named as a beneficiary to receive any real or personal right6
upon the death of the principal.7
(5) A trustee or beneficiary of an inter vivos or testamentary trust created by8
or for the principal.9
(6) A caregiver of the principal.10
(7) Any other person with sufficient interest in the welfare of the principal.11
B. The petition shall be verified and shall name as defendants the principal,12
the mandatary, and any other person against whom relief is sought. The petition13
shall state with particularity the facts establishing the petitioner's right to bring the14
action, the reasons that a review of the acts of the mandatary is needed, and the relief15
sought.16
C. The principal shall be personally served with the citation and petition.17
Service on the principal through a mandatary shall not be effective.18
D. The action shall be filed in the parish where the principal is domiciled,19
where the principal resides if without a domicile in this state, or where the principal20
is physically present or where immovable property of the principal is located if the21
principal is without either a domicile or a residence in this state.22
Comments - 201423
(a) Because a mandate is generally durable under Louisiana law, it is likely24
that a mandatary will continue to act for a principal after the principal is no longer25
able to monitor the performance of the mandatary. This Chapter creates a new right26
of action to allow persons other than the principal to initiate an action against a27
mandatary. This right of action is not available when the principal is not a natural28
person, or when a curator has qualified, as other law governs those claims. This29
Chapter has no impact on the authority that a principal has under any other law to30
control the actions of a mandatary, to terminate a mandate, or to recover property or31
damages from a mandatary; it merely authorizes additional parties to bring those32
claims on the principal's behalf.33
(b) Civil Code Articles 880 - 901 govern who is a presumptive heir.34 ENROLLEDHB NO. 1133
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(c) Governmental agencies are omitted from the list of those who may file1
an action under this Chapter because they have authority to bring actions under other2
laws. See, for example, R.S. 14:67.21 (Theft of the assets of an aged person or3
disabled person), R.S. 14:93.3, (Cruelty to the infirmed), R.S. 14:93.4 (Exploitation4
of the infirmed), R.S. 15:1501-1511 (Adult Protective Services Act) and R.S.5
46:437.1 et seq. (Medical Assistance Programs Integrity Law).6
(d) As Civil Code Article 2988 generally applies the rules of mandate to7
procurations, an action under this Chapter may be brought against a representative8
with respect to a procuration. See R.S. 9:3856.9
(e) The principal must be named as a defendant and must be personally10
served with the petition and citation to ensure the principal has actual notice of the11
action. The petition may also name a person other than the mandatary and the12
principal as a defendant.13
(f) The petition must include a detailed explanation of the objectionable acts14
and the reasons for the objection.15
(g) This Chapter imposes a heightened pleading standard and requires a16
verified petition to discourage plaintiffs from filing frivolous suits. As an additional17
disincentive to frivolous suits, the prevailing party may be awarded costs and18
attorney fees under R.S. 9:3855.19
(h) Subsection D addresses venue only and is not intended to create personal20
jurisdiction over any defendant.21
(i) An action under this Chapter shall be by ordinary process, but the use of22
summary proceedings is available to address incidental questions arising in the23
course of the action. See C.C.P. Art. 2592(1).24
(j) R.S. 9:3854(D) permits a court to order injunctive relief without a25
showing of irreparable injury.26
§3852. Dismissal upon motion to dismiss filed by the principal27
A. If the principal files a motion to dismiss the action, the principal shall28
testify in person at the hearing on the motion or, with the agreement of the parties or29
for good cause shown, by visual remote technology or by deposition.30
B. The court shall grant the principal's motion to dismiss the action if it finds31
that the principal is able to comprehend generally the nature and consequences of the32
acts of the mandatary and that the mandatary's authority to act is not the result of33
fraud, duress, or undue influence.34
Comments-201435
(a) A principal may choose to file a motion to dismiss the action. Before36
ruling on the principal's motion to dismiss, the court must hold a hearing to37
determine whether the principal is aware of the acts of the mandatary and not subject38
to fraud, duress, or undue influence, is able to comprehend generally the nature and39
consequences of the acts of the mandatary, and appears able to make reasoned40
decisions.41 ENROLLEDHB NO. 1133
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(b) When a principal is aware of the acts of the mandatary, and is not subject1
to fraud, duress, or undue influence, and is able to comprehend generally the nature2
and consequences of the acts of the mandatary, the court must grant the principal's3
motion to dismiss.4
(c) The principal must be present in person at the hearing to allow the court5
to make the determinations described in this Section. The parties may agree to, or6
the court may order, remote testimony. The standard for permitting a principal to be7
absent from the proceeding, for good cause shown, is a lower standard than is8
required by Code of Civil Procedure Article 1633.1, which allows testimony by9
visual remote technology under compelling circumstances. This lower standard10
allows greater use of remote testimony in an appropriate case.11
§3853. Substitution12
Upon the interdiction or death of the principal, the court shall allow a curator13
with appropriate authority or the principal's legal successor to be substituted for the14
plaintiff.15
Comments - 201416
(a) The principal's death terminates the mandate. This Section permits the17
principal's legal successor to be substituted for the petitioner in an action under this18
Chapter. The legal successor may then elect to continue or to dismiss the action.19
Conflicts of interest may arise when the succession representative is also the20
defendant in the action. Under other laws, presumptive heirs and legatees may21
challenge the appointment of a succession representative they deem to be unfit or22
may bring an action against a succession representative.23
(b) Full interdiction also terminates the mandate. A court may terminate a24
mandate in a limited interdiction by placing the property subject to the mandate25
under the authority of a curator. A curator, once qualified, can be substituted for the26
petitioner and may then elect to continue or to dismiss the suit. Temporary or27
preliminary interdictions have no effect on the action; it remains available during a28
temporary or preliminary interdiction.29
(c) Allowing substitution avoids res judicata issues. The existing action30
continues with the new parties. Where prescription was interrupted by the31
commencement of an action under this Chapter, that interruption continues.32
§3854. Relief33
A. If the court finds that a mandatary has violated a duty or failed to perform34
any obligation as a mandatary, the court may:35
(1) Grant any relief to which the principal is entitled.36
(2) Enjoin the mandatary from exercising all or some of the powers granted37
by the mandate.38
B. While the action is pending, the court may do any of the following:39
(1) Order an accounting from the mandatary.40 ENROLLEDHB NO. 1133
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(2) Order, without first holding a contradictory hearing, a financial1
institution, a healthcare provider, or any other person to provide the financial,2
medical, or other information of any defendant to the action.3
(3) Appoint a qualified person to investigate the allegations of the petition4
and to report the findings.5
(4) On its own motion, order other appropriate discovery.6
(5) Enjoin the mandatary from exercising all or some of the powers granted7
by the mandate during the pendency of the action.8
(6) Appoint a person to exercise some or all of the authority granted by the9
mandate, including authority to perform routine financial transactions and to make10
healthcare decisions, if there is no successor or substitute mandatary named in the11
mandate who is able or willing to serve, or if no law otherwise provides a person to12
act.13
C. In reaching its decision, the court shall consider the mandate and may14
consider any other relevant factors, including any of the following:15
(1) The expressed wishes of the principal.16
(2) The known or reasonable expectations of the principal.17
(3) The best interests of the principal.18
(4) Any will, trust, or beneficiary designation executed by the principal.19
(5) The principal's history or pattern of donations inter vivos.20
(6) Physical, financial, or psychological abuse of the principal.21
(7) Fraud, duress, or undue influence.22
(8) The principal's regular contact with family and friends other than the23
mandatary.24
(9) The ability of the principal to comprehend generally the nature and25
consequences of the acts of the mandatary.26
(10) The donee's knowledge or imputed knowledge that a donation was not27
for the benefit or gratification of the principal.28
(11) The good or bad faith of a defendant.29 ENROLLEDHB NO. 1133
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D. Unauthorized acts by or with the consent of a mandatary are subject to1
injunctive relief without a showing of irreparable injury.2
Comments - 20143
(a) This Chapter allows a person other than the principal to ask for court4
review of the acts of a mandatary. It does not create new standards of behavior for5
the mandatary. After a hearing, a court can order any relief to which the principal6
is entitled if the principal had brought the claim against the mandatary.7
(b) A court may take actions normally reserved to the principal such as8
terminating some or all of the authority granted by the mandate or collecting funds9
due to the principal. If a court enjoins a mandatary from acting, this Section10
authorizes the court to appoint a person to handle the principal's affairs until11
disposition of the action. A principal apparently unable to make reasoned decisions12
may also be unable to name a new mandatary.13
(c) This Section expressly authorizes the court to gather information from14
financial institutions and healthcare providers, and to appoint an investigator. R.S.15
13:3715.1 permits a court to issue an order for the production of a patient's records,16
but only after a contradictory hearing. This Section, however, allows the court to17
obtain medical records without a contradictory hearing. A court order to provide18
financial records under this Section is not subject to the requirements of R.S. 6:333.19
(d) The list of factors for the court to consider offers guidance. It is20
illustrative and not exhaustive.21
(e) An action under this Chapter is by ordinary process, but summary22
proceedings are available to address incidental questions arising in the course of the23
action. See C.C.P. Art. 2592(1).24
(f) Code of Civil Procedure Article 3601 allows a court to issue an injunction25
"where irreparable injury, loss, or damage may otherwise result to the applicant or26
in other cases specifically provided by law. . .". Subsection D permits a court to27
order injunctive relief without a showing of irreparable injury.28
§3855. Payment of costs and attorney fees29
The court may render judgment for costs and attorney fees, or any part30
thereof, against any party. Nevertheless, costs or attorney fees shall not be awarded31
to a petitioner when the petition is dismissed on the merits.32
Comments - 201433
(a) Court costs and attorney fees are allowed to discourage frivolous suits or34
to reimburse the petitioner who initiates an action under this Chapter to benefit the35
principal.36
(b) The principal may be responsible for reimbursing the mandatary for37
expenses incurred in carrying out the mandate, as provided in Civil Code Article38
3012.39 ENROLLEDHB NO. 1133
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§3856. Applicability1
A. This Chapter applies to a procuration and a representative in the same2
manner as it applies to a mandate and a mandatary, respectively, and allows an action3
against a representative for violating any duty or failing to fulfill any obligation in4
the procuration.5
B. This Chapter does not apply to a mandate to the extent that the mandate6
is irrevocable as provided by law.7
Comments - 20148
(a) Civil Code Article 2988 subjects a procuration to the rules governing9
mandate.10
(b) This Chapter creates a new right of action to protect the interests of a11
principal when a mandatary is no longer prudently fulfilling the mandate. This12
protection may not be appropriate for all mandates. This Section excludes from this13
protection a mandate made in the interest of the mandatary or a third person when14
the principal agrees that the mandate is irrevocable and when the law allows the15
mandate to be irrevocable.16
(c) Civil Code Article 3025 governs when the parties may agree to make a17
mandate irrevocable. A common occasion for irrevocability involves creditors who18
require an irrevocable mandate in case a debtor defaults. The "third party" identified19
in Civil Code Article 3025 could be a creditor.20
Section 2. Civil Code Article 3029 is hereby amended and reenacted to read as21
follows:22
Art. 3029. Termination by the mandatary23
The mandate and the authority of the mandatary terminate when he the24
mandatary notifies the principal of his resignation or renunciation of his authority.25
When a mandatary has reasonable grounds to believe that the principal lacks26
capacity, the termination is effective only when the mandatary notifies another27
mandatary or a designated successor mandatary. In the absence of another28
mandatary or a designated successor mandatary, the termination is effective when29
the mandatary notifies a person with a sufficient interest in the welfare of the30
principal.31
Comment - 201432
The duty of the mandatary to notify someone other than the principal when33
the mandatary believes the principal lacks capacity does not impose a duty on the34
person notified to accept any responsibility or to take any action. The mandatary35 ENROLLEDHB NO. 1133
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remains responsible for the consequences of his failure to fulfill the mandate until1
proper notice is given.2
Section 3. R.S. 6:311.1 and 333(B)(introductory paragraph) are hereby amended and3
reenacted to read as follows:4
§311.1. Powers of attorney, procuration, and mandate; written notice of revocation5
A.(1) Notwithstanding any provision of law to the contrary, any federally6
insured financial institution presented with an original or certified true copy of a7
power of attorney, procuration, or mandate that is sufficient to authorize the named8
agent, representative, or mandatary to transact business in a deposit account, with a9
certificate of deposit, or with other funds on deposit, or sufficient to authorize access10
to a safe deposit box, may rely on the authority designated in such the power of11
attorney, procuration, or mandate as being in full force and effect, unless an officer12
of the federally insured financial institution receives written notice that such the13
power of attorney, procuration, or mandate has been terminated or revoked,14
modified, or terminated, and the institution has had reasonable opportunity to act on15
it.16
(2) Written notice shall be deemed to be received upon receipt by an officer17
of the federally insured financial institution.18
(3) For the purposes of this Section, "written notice" shall mean a court order19
or other writing addressed to the federally insured financial institution indicating that20
the principal power of attorney, procuration, or mandate has been revoked, modified,21
or terminated, the authority of the agent, or indicating that one of the events of22
termination as specified in including a termination pursuant to Civil Code Article23
3024 has occurred.24
B. A federally insured financial institution shall not be liable for transactions25
or activity by an agent, representative, or mandatary occurring prior to the receipt of26
written notice and a reasonable opportunity to act on it.27
* * *28
§333. Disclosure of financial records; reimbursement of costs29
* * *30 ENROLLEDHB NO. 1133
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B. Notwithstanding any other provision of law to the contrary, except R.S.1
9:151 et seq. and 3854(B)(2), R.S. 13:3921 et seq., Code of Civil Procedure Article2
2411 et seq., R.S. 46:236.1.4, and R.S. 47:1676(D)(2) and 1677, no bank or its3
affiliate shall disclose any financial records to any person other than the customer to4
whom the financial records pertain, unless such financial records are disclosed:5
* * *6
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: