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 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)