What is a power of attorney and why do I need one?
In Louisiana, a power of attorney is called a mandate. A mandate is a formal written document that authorizes one person to act for another. It lets others know whom you have chosen to speak for you when you cannot handle your own affairs or speak for yourself. Signing a mandate does not mean that you give up your independence. You can still make your own decisions. A mandate makes it easier for whomever you have chosen to do what’s necessary to best care for you. The most common mandates are described below.
A General Mandate grants authority for someone else to act on your behalf when dealing with financial institutions, governmental agencies, and others. It can also allow someone to buy, sell, mortgage, rent, donate or manage property. General mandates can be limited or broad in nature.
Health Care Mandate
A Health Care Mandate grants authority for someone else to make personal and health care decisions on your behalf when dealing with health care professionals, medical facilities and nursing homes. Because of HIPAA regulations and privacy concerns, even spouses are often asked for mandates regarding medical care of a disabled spouse.
Provisional Custody by Mandate
A Provisional Custody by Mandate grants temporary authority for someone else to make decisions regarding the health, education and general welfare of your minor children for a specified period of time. By law, a Provisional Custody by Mandate cannot be effective for any longer than one year.
A specific mandate grants authority for someone else to act on your behalf to carry out very specific duties under very specific circumstances. It is different from a general mandate in that it usually grants authority for a specific instance as opposed to general authority to handle all instances of a certain kind. For example, a specific mandate might grant authority to sell a certain piece of property owned by the principal by a certain date, as opposed to a general mandate granting authority to sell any and all property owned by the principal without a set deadline.
Frequently Asked Questions
Does the person who is granting authority (the principal) have to appear before the notary?
Yes. The person granting authority has to prove their identity and sign the power of attorney in the presence of the notary. Personal appearance allows the notary to confirm whether the principal knows what he is doing and why he is doing it.
If the person being given authority (the mandatary or agent) lives out of town, do they have to be present at the time the principal signs the power of attorney?
No. The power of attorney can be signed by the principal without the mandatary being present. Be sure to let the notary know if the principal and the mandatary will not appear together.
What is a "durable" power of attorney?
The term "durable" means that the power of attorney remains effective even if the principal becomes mentally incompetent and unable to take care of himself. Louisiana powers of attorney are automatically durable unless otherwise stated.
Can a power of attorney be effective only if the person who granted authority (the principal) becomes disabled, and not before?
Absolutely. This is called a conditional procuration. It does not become effective until two doctors have declared that the principal is consistently unable to make or communicate reasoned decisions.
Is it necessary for me to sign a Provisional Custody by Mandate if my child is over 18 years old?
No. If your child is over 18 years old, he or she can now make their own medical and educational decision. The Provisional Custody by Mandate is for minor children.
If my adult child is disabled, can he or she sign a mandate?
The answer depends on the severity of the disability. A person must be able to generally comprehend the consequences of signing a power of attorney, and they must be able to communicate this understanding to the notary. A person who is not able to communicate with the notary cannot have their signature notarized.
What does it mean to be mentally or legally competent?
Generally, competence refers to the mental capacity of an individual to understand, affirm, and participate in binding transactions, and the mental condition a person must have to be responsible for his or her decisions or acts.
While your Notary In The East is an expert in her field, she is not an attorney. The information presented on this website should not be taken as, nor is it intended to be a substitute for, legal advice. If you need legal advice, you should see a competent attorney licensed to practice law in Louisiana.