Can Son with Power of Attorney represent elderly Mom ?

[chetccr]

A friend of mine has been writing letters, fielding phone calls, and preparing settlement offers to various CC companies, CA's, and attorney's for his elderly mom who has fallen behind on some credit card payments. He is not a lawyer and states he is able to do this with a General Power of Attorney.

1. Is he right ?

2. Can he also file all answers, motions, and represent her in court without her actually being there ?

3. If so, would a "Specific" Power of Attorney be more appropriate ?

[montanatim]

I can say for Montana, Yes with power of attorney the agent can represent the principal in all matters the POA authorizes, including civil litigation. This does not however authorize representation in criminal matters.

Look up POA in your statutes to see what the form your state uses should include. Also look up duties and/or limitations of agency.

1. Is he right ? Probably depending on what his statutes say.

2. Can he also file all answers, motions, and represent her in court without her actually being there ?See answer to #1.

3. If so, would a "Specific" Power of Attorney be more appropriate ?

Unnecessary if the general covers civil litigation.

[nascar]

If the POA gives your friend general rights to manage the financial affairs of of his mother, yes, he can negotiate with creditors on behalf of his mother.

A power of attorney, regardless of the terms contained therein, does not give a person the right or privilege to represent another in a court of law. You can however, seek and retain counsel on behalf of another.

[montanatim]

As I said, depending on your states statutes, Montana's reads

72-31-232. Construction of power relating to claims and litigation. In a statutory power of attorney, the language with respect to claims and litigation empowers the agent to:

(1) assert and prosecute before a court or administrative agency a claim, counterclaim, or offset, and defend against an individual, a legal entity, or government, including suits to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief;

(2) bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae;

(3) in connection with litigation, procure an attachment, garnishment, libel, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;

(4) in connection with litigation, perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation;

(5) submit to arbitration, settle, and propose or accept a compromise with respect to a claim or litigation;

(6) waive the issuance and service of process upon the principal; accept service of process; appear for the principal; designate persons upon whom process directed to the principal may be served; execute and file or deliver stipulations on the principal's behalf; verify pleadings; seek appellate review; procure and give surety and indemnity bonds; contract and pay for the preparation and printing of records and briefs; and receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;

(7) act for the principal with respect to bankruptcy or insolvency proceedings, whether voluntary or involuntary, concerning the principal or some other person, with respect to a reorganization proceeding or a receivership or application for the appointment of a receiver or trustee that affects an interest of the principal in property or other thing of value; and

(8) pay a judgment against the principal or a settlement made in connection with litigation and receive and conserve money or other thing of value paid in settlement of or as proceeds of a claim or litigation.

History: En. Sec. 11, Ch. 580, L. 1991; amd. Sec. 124, Ch. 494, L. 1993; Sec. , MCA 1991; redes. by Code Commissioner, 1993.

[nascar]

As I said, depending on your states statutes, Montana's reads

I can understand how easily this can be misinterpreted. The following excerpt is from a Montana Supreme Court opinion dealing with the subject:

Eldon Huffine (Eldon), appearing pro se, appeals from the order entered by the Eighteenth Judicial District Court, Gallatin County, denying his motion for an explanation. In its order, the District Court reasoned the motion was not proper because the court is not required to give "explanations." The court also ordered that Eldon shall not file documents or otherwise practice law on behalf of his mother Sarah Huffine unless he first shows he is a licensed attorney, reasoning that his purported power of attorney did not authorize him to practice law. ... Affirmed. First Sec. Bank of Bozeman v. Huffine, 2006 MT 141N; 2006 Mont. LEXIS 243.

A POA can grant one the rights to do all the things listed in the statute; you just have to do them through an attorney.

[montanatim]

O.K. I'm still in arguing mode though.

So our boy Eldon, has what the district court referred to as a "purported" POA. Apparently not a statutory POA. Which Eldon thinks he has.

Therefore the court correctly found he could not represent his mother with out license.

Quote from further on;

¶4 Finally, Eldon contends his statutory power of attorney for Sarah entitles him to represent her in legal proceedings. The only document of record appearing to be a power of attorney—which is attached to the complaint—does not “substantially compl[y]” with § 72-31-201(1), MCA, as required for a statutory power of attorney. See § 72-31-201(2), MCA. Therefore, Eldon’s reliance on authority concerning statutory powers of attorney is misplaced and we dismiss this appeal as it pertains to Sarah.

The Supreme court also found that the POA did not meet the statutory requirements and that is why poor Eldon was shot down.

The statute reads:... In a statutory power of attorney, the language with respect to claims and litigation empowers the agent to:.

I notice that it does not say ...empowers the agent through an attorney to:

He may have also had to sign the documents with his principals name and indicate it was done under POA, if only he had an actual statutory POA.

Also: 37-61-215. Allowance of attorneys' fees to unlicensed persons forbidden. It shall be unlawful for any court within this state to allow attorneys' fees in any action or proceeding before said court in which attorneys' fees are allowed by law to either party to such action or proceeding when such party is represented by anyone other than a duly admitted or licensed attorney at law.

Whada ya think? This discussion fascinates me, I have learned a lot from you and would like to see your reply on this interpretation.

[nascar]

Whada ya think?

I think that although your argument is compelling, I wouldn't be in a hurry to test it. You live in Montana, right? One way to be sure is to call a couple of local attorneys or perhaps one of your county judges and ask. Let me know what you find out.