A power of attorney can be a necessary, if not critical mechanism by which to accomplish certain activities in one’s life, where the person instilled with such power acts as an agent on behalf of the appointing individual. For instance, elderly or disabled individuals often designate someone, often a relative, with a power of attorney to handle financial affairs, real estate matters, and even court proceedings. Indeed, the appointee can do whatever he or she is allowed to do pursuant to the written POA, which can be tailored to a specific situation. The written POA is signed by the appointing person, otherwise known as the “principal”, and the appointee, known as the “attorney-in-fact”, to “perform specified acts on behalf of the principal as the principal’s agent.”
Can a person be appointed, however, as an “attorney-in-fact” to act as the principal’s agent in a divorce proceeding? Until recently, this question had gone unanswered in New Jersey case law. From my own experience, I was recently involved in a matter where the family part judge barred a pro se litigant from having her father act on her behalf with a power of attorney. As the litigant was competent, never claimed or was adjudicated as incompetent, and provided no basis why she should could not act or testify on her own behalf, the trial court found inappropriate the father’s claimed authority.
In Marsico v. Marsico, the latest published decision from the Honorable Lawrence R. Jones, J.S.C., Ocean County’s prolific family court judge, the Court barred a litigant from appearing and testifying in a divorce matter through a designated power of attorney. The parties involved in the divorce matter were each in their eighties, having been married for more than thirty years. In December, 2012, husband executed a Power of Attorney (POA) appointing his daughter from a prior relationship as his “true and lawful attorney-in-fact” over his affairs, giving her a broad range of power to handle financial matters on his behalf, as well as “institute, prosecute and defend any actions or proceedings brought in any court.”
In responding to wife’s complaint for divorce, husband filed – but did not sign – an answer and counterclaim, which was signed, instead, by his daughter as his unilaterally appointed attorney-in-fact. Wife logically objected, arguing that husband had not even yet been adjudicated as unable to act on his own behalf or otherwise incompetent. She also argued that a potential conflict of interest existed since husband’s daughter had a potential interest in an ultimate disposition of the marital estate.
Prohibiting the daughter from acting on husband’s behalf, Judge Jones concluded:
As regarding an appearing party’s duty to render written certifications or oral testimony in a contested divorce proceeding, however, [New Jersey's Revised Durable Power of Attorney Act] does not expressly authorize one to delegate such duty to a third person. To the contrary, the court finds that a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without consent of the other party or court order.
The court took particular issue with such efforts in the context of a family law matter, where “the entire factfinding procedure is heavily dependent upon the testimony of the parties themselves, and involves a focus on otherwise private issues, dealings and communications between spouses within the family structure.” Indeed, the judge addressed the potential pitfalls involved, with a litigant “sidestepping” his obligation to testify, disclose certain information, undergo cross examination, and the like, as well as the agent’s lack of personal knowledge, all under the court’s watchful eye and analysis of credibility.
Such fact finding and disclosures, through certified statements from a litigant, come as early as the initial pleadings for divorce, the Case Information Statement, discovery responses, certifications in support of motions, depositions, testimony in court, and more. Indeed, while not drawing conclusions as to the particular principal/husband in this matter, Judge Jones concluded, “Such power may potentially lead to serious misuse by parties who seek to employ such a strategy for inappropriate and improper purposes that are obstructive to the fact finding process.”
Cogently referencing the New Jersey Rules of Evidence, the court noted the requirement of personal knowledge with respect to the facts of a matter, where such facts could not be propounded by an agent without risk of same being incomplete or unreliable, or even a form of inadmissible hearsay. The court even referenced the potential unauthorized practice of law through the appointment of an attorney-in-fact.
Notably, the court expressly excepted those situations where the litigant has already been judicially declared incompetent and thus, is unable to act on his or her own behalf, and the court has appointed a legal guardian, rather than the principal unilaterally appointing an agent of his or her own choosing. The court also addressed those situations where there is no incompetency declaration and the person can largely function independently, but certain mental health challenges merit the appointment of a guardian ad litem to assist the party during a litigation.
Marisco teaches us that the potential concerns raised by instilling an individual with a power of attorney preclude its use in a divorce or other family court matter. There are several other ways to ensure your own protection as a litigant, whether it be through a guardian ad litem, declaration of incompetency/guardianship appointment and more. As a litigant in a family court matter, it is otherwise incumbent upon you to be a part of the process, appear, testify and the like, no matter how reasonable the circumstances in which the POA was executed.
Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.
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