Legal Memorandum: Inter Vivos Donations and a Power of Attorney in LA

Issue: When does a Power of Attorney grant an agent the power to make inter vivos donations to himself or herself, and family members in Louisiana?

The Louisiana Civil Code uses the term procuration, rather than the common-law term power of attorney.  Article 2987 defines a procuration as “a unilateral juridical act by which a person, the principal, confers authority on another person, the representative, to represent the principal in legal relations.”  LSA-C.C. art 2987.  It is generally subject to the same rules governing a “mandate,” id. art 2988, which is “a contract by which a person, the principal, confers authority on another person, the mandatory, to transact one or more affairs for the principal, id. art. 2989.  The principal may confer on the mandatory (hereafter “agent”) “general authority to do whatever is appropriate under the circumstances.”  Id. art. 2994.

Express authority is required, however, to make inter vivos donations on behalf of the principal.  LSA-C.C. art. 2997.  An agent “who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal.”  LSA-C.C. art. 2998.  In other words, an agent may not engage in self-dealing, unless the principal authorizes the act. 

“The principal is bound to reimburse the [agent] for the expenses and charges he has incurred . . .”  Id. at art. 3012. 

An agent may make inter vivos donations to himself or herself, and family members, so long as the donation is authorized by the principal.  Verbal authorization is sufficient.  See Fernandez v. Hebert, 2006-1558 (La. App. 1st Cir. 5/4/07), 961 So. 2d 404, writ denied, 2007-1123 (La. 9/21/07), 964 So.2d at […]