What is a Power of Attorney?
The term power of attorney (POA) refers to both the document signed by a principal (the party creating the power of attorney) and the agent named in that document. A properly drafted and executed power of attorney (POA) is a written document appointing someone (the agent) to act on behalf of an individual (the principal). The power of attorney appoints the agent through the use of either a general or a limited power of attorney. Through a general power of attorney, the principal grants the agent legal authority to handle all of the affairs of the principal. In contrast, the agent’s power under a limited power of attorney is restricted to certain matters stated in the document.
Powers of attorney may specify the exact powers being given to the agent . Thus, for a person served with a lawsuit, review of the document appointing the present agent would be necessary to determine if the agent has the authority to act for the principal in the pending litigation. Certain POAs provide the principal the right to override an agent’s authority at any time. However, a frequently overlooked issue is that a signature by an agent may result in an acceptance of the power and obligate the agent to act. Thus, the safe route is always to execute a new power of attorney if there is a question regarding the validity of the document currently in effect. The principal may revoke his or her power of attorney at any time. Again, a new power of attorney executed by the principal usually will eliminate questions regarding the agent’s authority.
Representation in Court and the Power of Attorney
A general definition of legal representation in court involves: a person(es) being able to institute or assume the conduct of proceedings on behalf of a litigant (the person being represented) and such proceedings requiring litigation, as opposed to non-litigation activities such as contractual matters or negotiations, and being entitled to case manage, make interlocutory applications, execute court documents and plead to the court on behalf of the litigant. The right to conduct a case is a right reserved by legislation for the legal profession (legal practitioners / solicitors / barristers); only registered legal practitioners are permitted to exercise or performing any functions of a "barrister" or "solicitor". This right is strictly reserved for the legal profession notwithstanding that there are no appropriate disciplinary rules in place to enable the exclusion of a lay person who is not a legal practitioner’s rights to represent a person in Court it is simply unenforceable as a legislative restriction upon the general right held by lay persons to represent themselves.
Power of Attorney versus Representation
Power of Attorney Vs. Legal Representative
First, a distinction must be made between the handling of legal affairs, in general, versus the actual appearance in a court of law in a lawsuit.
Power of Attorney
When someone acts as a power of attorney for another person, that action does not require any special credentials, training, or even legal training. It is a legal process that can, in most circumstances, be accomplished through the completion of standard forms available to anyone. Much estate planning, for example, might involve the completion of a general power of attorney.
However, in the course of a lawsuit, a person holding a general power of attorney does not have the ability to appear in court on behalf of the person that they represent through the power of attorney, or to submit evidence to the court through written or oral testimony. A general power of attorney would not allow the holder to appear on behalf of the person that they represent in a lawsuit for example.
Legal Representative
A legal representative, unlike the holder of a general power of attorney, must be authorized by the court and that authorization must be granted by the court that has jurisdiction. One of the most common situations where a court appointed legal representative might arise is in the case of a minor child whose parents are separated or where the parent(s) die, and the grandparents of the minor wish to represent the child in their best interests in a family court proceeding.
The court appoints a legal representative for the minor child through its appointed judge, who must have special training in the area of family law and who become acquainted with the circumstances in the case. The legal representative is usually an attorney and might be a member of the same law firm who represents the minor child’s grandparents.
The legal representative then has the authority and legal power and fiduciary duties to represent the minor child through all proceedings, so long it is deemed in the best interests of the minor child for those proceedings to continue.
Limits of the Power of Attorney Arranged in Court
A common misconception persists that the holder of a power of attorney may serve as a person’s representative in court. When this happens, it is likely to result in an adverse decision for the party who has placed this mistaken belief into the hands of a non-attorney.
Pursuant to § 1-538.1 of the Virginia Code, statutory powers of attorney do not authorize the agent "to appear on behalf of the principal or otherwise represent the principal in a proceeding." This section is derived from the Revised Uniform Unrepresnted Transactions Act of 2006 (RUTA) and the annotated code that accompanies the law explains that § 1-538.1 "is included in this chapter [Title 11.5 of the Virginia Code] in order to clarify the powers granted by the principal to an agent authorized by a statutory power of attorney."
In addition to this general rule, § 16.1-88.03 of the Virginia Code also contains specific language related to the representation of parties in district courts: "In district courts only, an individual may represent himself in any action brought pursuant to… Chapter 13…."
A specific example of the prohibition on the representation of persons by agents is found in the case of Jennings v. HPL&A, 2012 WL 1069306 (Va.Cir. 02/07/2012), where the Henrico Circuit Court addressed the issue of whether a company could sue and recover amounts due for services rendered to one of its customers by filing suit only with a copy of the underlying contract and without an assignment of that contract.
The customer-defendant moved to dismiss the plaintiff-in-circuit-court’s action on the grounds that it did not establish an assignment of the rights under the service contract. However , the operator of the company-plaintiff also appeared and tried to argue that he could provide the evidence of the assignment to the contract because he was the attorney-in-fact for the plaintiff pursuant to a power of attorney. At this juncture, the court stopped Mr. Jennings.
In the course of his ruling, the Hon. Thomas N. Nafzger recognized that "at first glance, it makes little sense that there would be anything wrong with Mr. Jennings representing his principal in a private litigation matter." Nevertheless, the court declined to "stretch the legislative intent of the General Assembly’s provisions regarding powers of attorney an additional inch simply because Mr. Jennings’s situation is perhaps understandable."
The court made several specific references to the widespread perception that granting a power of attorney to another person somehow gives that person the right to appear as a client’s representative in court.
Referring to Virginia Code §§ 16.1-88.03 and 8.01-271.1, Judge Nafzger pointed out the types of representatives who are allowed to appear in district courts. As such, he also noted people doing their "best impressions of attorneys" in the courtroom and there being "no intervening counsel" to object.
Accordingly, the court dismissed the plaintiff’s action because the company failed to provide any evidence that it had assigned its rights under the contract to Mr. Jennings in accordance with § 16.1-88.03 and stated directly that it was Mr. Jennings’s misapprehension of the nature and scope of his power of attorney that caused the plaintiff "to take this route."
From this ruling it is clear that a person with a power of attorney is not permitted to represent someone in court and any attempt to do so would be contrary to the intent of the legislature. It is therefore prudent for a power of attorney holder to hire an attorney if they wish to pursue or defend an action.
Some Exceptions and Special Cases
While the general rule is that a power of attorney must be used out of court, there are some exceptions. For example, in small claims court, a person can proceed through a power of attorney. The magistrate has discretion to allow a power of attorney to handle certain matters without an additional order from the court.
The specific statute dealing with power of attorneys in small claims court is Ohio Revised Code section 1925.16(A)(3):
"On motion of either party in a case in which the amount claimed does not exceed six thousand dollars, or involving the ownership of choses in action, which was commenced in the small claims division of the court of common pleas pursuant to division (B) of section 1925.02 of the Revised Code, the court shall permit a party who is non compos mentis or who is a minor to appear in person by a duly authorized attorney or guardian ad litem, but only if the party does not object to the appointment of the attorney or guardian ad litem, and especially where the party has previously appeared by attorney in the same case."
As long as the parties do not object to the appearance of a power of attorney, the magistrate should grant the motion without further hearings or objections.
How to Arrange for Proper Representation
When it comes to having the power of attorney for someone in a legal setting, it’s important to ensure that you are actually able to hire a lawyer to represent that individual, or you may find yourself accidentally upline yourself and messing up your case. An individual should have a durable power of attorney in place and check to make sure it specifically addresses legal matters.
For example, in Pennsylvania, with the new law that is effective as of January 1, 2015, there is a provision that focuses on powers of attorney. It permits an agent to hire an attorney. This must be specifically outlined in the durable financial power of attorney for an agent to be able to retain an attorney on another person’s behalf. In the past, some people may have thought that a power of attorney would have been fine to represent someone in court because they are acting on behalf of that individual. With this new act in Pennsylvania, this will clearly not be the case. An agent needs to have specific authority to retain a lawyer to represent the other party, so those specific words would have to be included in the document.
There are two places in the act where it defines that an agent does not have the authority to retain an attorney to represent the principal. It also states, "A power of attorney does not authorize the agent to act as a representative for the principal in the principal’s capacity as a trustee of any trust".
To sweeten the deal, the act also states, "An agent that does not possess authority under a power of attorney granted under this chapter may not execute a document to grant the authority". If the agent does have authority, how does that work with having the power to retain an attorney? It depends on what wording is used in the power of attorney, but again, it should be explicitly spelled out in the document .
Looking specifically at the terminology of the act, it defines a power of attorney as, "A power of attorney means a writing or other record that grants authority to an agent to exercise the powers of an agent as described in section 3303(a) (relating to powers of agent). The term includes a springing or nontesting power of attorney, but excludes a power revoked by a marriage or divorce under section 3307 (relating to power revoked by marriage or divorce)". While this looks to be able to cover a springing power of attorney or a non-springing power of attorney, if you look at the definitions of a "power of attorney" in this specific act, under Section 3102(a)(31), it states, "An agent that does not possess authoritative under a power of attorney granted under this chapter may not execute a document to grant the authority to an agent that changes from requiring a qualifying event to a springing power of attorney". This tells us that a power of attorney must specifically be exercised under the new act of 2015.
Finally, for purposes of intellectual disability representation, there is one Pennsylvania case that has advised that a power of attorney does not have the ability to represent an individual in court with respect to the individual’s benefit applications. Specifically, in AT&T v. Kraybill, the Superior Court did hold that, "We conclude that a validly executed and notarized power of attorney does not grant to the holder the legal authority to represent the principal as attorney-in-fact in litigation". Similarly, I suggest consulting an attorney for further legal representation questions about a specific case.
