Judge Places Limits On Designated Power Of Attorney In Divorce Proceedings

GavelNew Jersey residents are allowed to designate a representative in legal matters. This arrangement, called a Designated Power of Attorney (POA), allows a trusted person to sign documents and negotiate legally binding agreements on your behalf. The right to a POA is expressed in the Revised Durable Power of Attorney Act (N.J.S.A. 46:2B-8.1). But when a litigant in a contested divorce case tried to use a POA, the court found that there are limits to a POA’s powers. Before  allowing someone to act with such power on your behalf, you should discuss the implications with a licensed attorney.

Mr. Marsico created a POA agreement that allowed his adult daughter from a prior marriage, Ms. Mertz, to act on his behalf in some legal matters. Several months later, Ms. Marsico decided she wanted a divorce from Mr. Marsico. When Ms. Marsico sent a complaint for divorce, Ms. Mertz signed and filed a counterclaim for divorce on behalf of her father, Mr. Marsico.

The attorney for Ms. Marsico objected to the counterclaim, stating that it wasn’t valid because it wasn’t signed by Mr. Marsico. The attorney went on to note that Mr. Marsico is 84 years old, but he has not been ruled incompetent by any court. Furthermore, the attorney argued that Ms. Mertz has a conflict of interest because she may eventually inherit part of the Marsicos’ marital estate.

The attorney representing Mr. Marsico noted that there is no court rule against using a POA in divorce litigation, and that a person has a right to use a POA to handle legal matters on his or her behalf. Both sides searched for relevant cases, but it appears that this matter has never been addressed before in a New Jersey divorce case.

There are some cases where a person can be appointed to appear in family court and sign court documents on behalf of another. These cases usually involve the appointment of a guardian ad litem. A guardian ad litem is a person who has been approved by a court to represent someone who has been ruled incompetent or incapacitated.

In this case, there is no indication that Mr. Marsico is incapable of signing his own documents or appearing in court as needed. In fact, New Jersey law (N.J.R.E. 601) says that with certain limited exceptions, every person is competent to be a witness. The judge said that special accommodations can be made in some situations. For example, depositions can be video recorded if there is a mobility problem. But Mr. Marsico has not indicated any such need.

The judge said that such a sweeping use of a POA’s power is different from a guardian ad litem or a simple request for a special accommodation. Noting that some court documents explicitly require a signature from the actual litigant, the judge reasoned that in divorce cases the litigants are often called upon to testify about intimate matters that a POA would not be able to address. There are private conversations and things that only the couple truly knows about. A second-hand account of these events by a POA is bound to be incomplete and inaccurate. The judge noted that when a person testifies about something that another person said outside the courtroom, it is hearsay and generally inadmissible. Finally, the court expressed its desire to observe people’s mannerisms and speech when testifying, in order to determine whether or not a person is telling the truth.  The judge ruled that court documents typically require the signature of the actual litigant, and that a POA is not allowed to appear on behalf of a litigant in a contested divorce case unless the court grants an exception.

If you are facing a divorce or the dissolution of a domestic partnership, you should seek the advice of a New Jersey family law attorney. Divorce cases are life changing events that require a deep understanding of the law and the ability to strongly advocate for a client in court as needed. When there is so much at stake, you need an experienced attorney standing at your side. Call the family law attorneys at Goldstein Law Group at 732-967-6777, or use the contact link on this page to request a consultation.

More Blog Posts:

Alimony Reform Law Addresses Inconsistencies Among Alimony Modification Cases, October 1, 2014

New Jersey Alimony Reform Creates Much Needed Guidelines, But Still Allows Broad Judicial Discretion, October 1, 2014

Termination of Alimony Payments in New Jersey,  August 27, 2014