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"Representation and Mandate" (used to be Power of Attorney)

Representation is when you give someone else the power to make decisions on your behalf in two situations:

  • You decide there are certain decisions (for example, financial or medical) that you want someone else to make for you.

OR

  • You name someone to make decisions for you if you lose the capacity to do so yourself.

The person who gives decision-making power away is called the principal. The person who receives decision-making power is called the representative. Representation is a less restrictive option than either interdiction or tutorship. It lets your family member keep control of certain parts of their care and finances when it's appropriate. Procuration is the act when the principal names the representative and lists what the representative has the power to decide.

A mandate is the legal contract between the principal and representative that describes the representative's authority and responsibilities. A procuration becomes a mandate when the representative agrees to accept the responsibilities. Once the mandate is established, the representative can now act on behalf of the principal.

Benefits of representation:

  • It's free (or fairly inexpensive)

  • It can be quick to set up

  • You don't have to involve the court 

Click on the boxes below to learn more about representatives:

Any competent adult can be a representative for your family member.

They should be over 18 and have the capacity to think through decisions and their long-term implications.

It is important that your family trust the person they are choosing to be their representative.

To make someone your representative:

  • You don't need to go to court! You can give someone the authority to be your representative orally or in writing.

  • You should always put this in writing! It is best to do this in front of a notary and 2 witnesses to avoid any confusion.

  • You can always seek legal help to make sure you are correctly naming a representative.

  • You can file a copy of the signed document with the clerk of your parish's court, but this isn't required.

This is a voluntary process! You can't be forced to choose a representative, and you can't force them to accept the responsibility.

Note: You must have capacity to understand the effects of representation and mandate before you can name someone as your representative.

If you can't afford a lawyer, try calling one of these organizations.

They should be able to give you free advice and maybe free or low cost legal help.

(Click on the title and the website will open in a new tab.)

Reminder: We do not endorse any of these providers. We are simply providing links for your reference.

To find legal help:

Please note that when you click on a link, the website will open in a new tab or window on your screen. When searching through these resources, look for lawyers who specialize in special education law, disability law, family law, probate law, interdiction, or tutorship.

  • Search for lawyers in your parish through the Disabilities Assistance Network. This list isn't comprehensive; the people listed here have asked to be included.

  • Check with the Louisiana Bar Association's Referral Service. In New Orleans you can call504-561-8828; in Baton Rouge you can call225-344-9926.

  • You can also call the Louisiana Bar Association at1-800-421-5722 for help finding a lawyer in your area.

  • The Academy of Special Needs Planners: Louisiana Listings.(The lawyers are marked A for Attorney)

  • Special Needs Alliance: Louisiana Listings.

  • National Academy of Elder Law Attorneys: search by your zip code here.(Besides elder law, these members usually know a lot about guardianship for people with disabilities as well.)

Reminder: We do not endorse any of the lawyers listed through these resources. We are simply providing links to databases for your reference. Legal fees will vary depending on the complexity of your case.

The representative's official name once they agree to take on the role is mandatary.

The representative/mandatary must do the following:

  • Act in the best interests of the principal

  • Update the principal on his or her affairs and how the mandatary is handling them

  • Must not misuse the principal's money or property

  • Must not act beyond the authority the principal has given him or her

  • Must act in accordance with your wishes

Tip: The representative should keep a running list of all institutions and people they notify of the representation. This may help later on!

Source: Advocacy Center of LA

You or the principal can end the representation at any time. Here's what you need to do:

  • Revoke the representation and mandate in the same form you created it. For example, if you wrote a document and signed in front of a notary and two witnesses, write a document to end the representation and sign it in front of a notary and two witnesses.

  • Notify everyone who knew of and relied on the representation that it has ended. This may include banks, medical providers, and other financial institutions.

  • If you filed the notice of representation in any court or any place where they keep official documents, you should file the revocation in the same manner and in the same place.

Tip: If you kept a list of all institutions and people you notified of the representation, pull out that list and tell them all that the representation has ended.

A procuration and mandate can also end these ways:

  • Upon death of the principal or representative

  • Upon resignation of the representative

  • If a curator takes over control of all the principal's affairs

A limited/special representation ends when the designated time period ends or if a named duty has been fulfilled.

Source: Advocacy Center of LA

Here's what you can do:

  1. Talk with your family member, a lawyer, and other helpful people like a teacher or case manager. They can help you decide which type of representation might be right for your family member.

  2. Write up a representation and mandate document. This will list all of the decisions you want to be able to make for your family member.

  3. Have your family member sign the representation and mandate document, and get it notarized. (This means they have to sign it in front of a person called a notary public. The notary is certified to swear they saw the document get signed.) Make sure you have two witness sign it at the same time.

When writing a procuration (or document that names the representative and lists what the representative has the power to decide), consider all possible decisions that your family member might want to make in the future.

If you want to be able to make decisions for your family member if they lose mental capacity, you should write that in your document. (This used to be called a durable power of attorney.)

Here are some examples of things to think about:

Medical

  • Seek medical care when they are sick or injured

  • Weigh the risks and benefits of medical procedures

  • Understand the need for routine medical care

  • Understand that they might still need a medical procedure, even if it is painful or unpleasant

  • Decide if taking a certain medicine is important, even though it may have unpleasant side effects

  • Describe their symptoms, conditions, and medical history accurately

  • Follow medical advice and treatment plans

Education

  • Understand their learning issues

  • Understand the services they need at school

  • Advocate for themselves to get the services they need at school

Finances

  • Count money

  • Make change

  • Keep their money safe so it's not lost or stolen

  • Keep a monthly spending budget

  • Pay for expenses

  • Take out a mortgage

  • Apply for government benefits

  • Accept inheritances

  • Calculate taxes

  • Set up trusts

Vocational / adult services

  • Apply for services from government agencies (for example, the Louisiana Rehabilitation Services' Vocational Rehabilitation Program)

  • Access the services they need, like job training, job support, or day programs

  • Advocate for themselves to get the best possible services

Living arrangements

  • Take care of themselves physically

  • Buy food, clothing, and shelter

  • Live in a group setting and respect other people's need for quiet, privacy, and cleanliness

Legal decision-making 

  • Understand what it means to sign documents

  • Make sound decisions in important life areas like housing, school, and work

Self-care and safety

  • Use basic safety skills, like staying away from dangerous areas, locking doors, not talking to strangers, and being careful around fires, stoves, candles, etc.

  • Get help during emergencies like fires or accidents

Communication

  • Communicate effectively (verbally or by other means)

  • Understand that they have choices

  • Express their preferences

Source: Jackins (2010), La. R.S. 9:3862

You can easily find a notary near you by typing your zip code into the search bar. (A new website will open in a separate tab or window.)

Make sure you are searching by zip code!

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A few notes about the procuration and mandate forms:

  • Some institutions don't accept procuration and mandate forms. These include some government agencies, banks, and insurance companies. They may have their own forms they want you to use.

  • To avoid problems, ask all the institutions you'll be dealing with if they will honor your procuration. If not, ask for their forms and use them.

  • A procuration and mandate should stay in effect for good. But sometimes institutions don't want to accept one that was signed more than a few years ago. If this happens, you might have to: * Fill outa form stating that the procuration is still in effect

OR

  • Sign a new copy of the existing procuration with a current date.

What happened to Power of Attorney and Durable Power of Attorney?

The two phrases no longer exist in Louisiana law. The law now uses procuration and mandate.

Source: Advocacy Center of LA