New Jersey's General Durable Power of Attorney Act gives you the right to authorize a person or an institution of your choosing to make decisions on your behalf. Through a power of attorney or durable power of attorney, your agent will be allowed to manage many of your affairs such as paying bills, selling properties and contracting medical services. Giving power of attorney to a trusted family member or friend is common among the elderly who suffer from illnesses, have limited mobility or wish to enjoy their retirement with minimal stress. Power of attorneys for the elderly usually allow the attorney-in-fact to make business and legal decisions, which leads to the question: Does a power of attorney give my agent the right to handle my divorce proceedings?
As a general rule, divorce courts do not allow an attorney-in-fact to act on behalf of a litigant unless he or she is judicially declared incompetent, in which case the court would appoint a legal guardian who has no stake in the divorce proceedings. This issue was addressed in the 2014 case of Marisco v. Marisco, in which the plaintiff and defendant were 80 and 84-years-old, respectively. The defendant had a power of attorney that authorized his daughter to “institute, prosecute and defend any actions or proceedings brought in any court.” Thus, when he was served with the divorce complaint, he had his daughter sign on the certification page as his attorney-in-fact. Objections were raised by his wife, the plaintiff, who argued that her husband was competent enough to represent himself in the divorce proceedings. She also objected to the daughter representing her father, citing that she had a personal stake in the divorce settlement due to her potential to inherit from her father's estate.
The superior court agreed that the defendant was mentally competent, and thus it would be unreasonable to allow an agent to act on his behalf. In addition, the court cited the Committee on the Unauthorized Practice of Law, which states, “An attorney-in-fact….may make decisions concerning litigation for the principal, such as deciding to settle a case, but a non-lawyer attorney-in-fact may not act as lawyer to implement those decisions….Nor may an agent appear on behalf of a principal in court as a pro se party.” Under these guidelines, the daughter was not permitted to sign legal documents such as certifications or affidavits on her father's behalf. Furthermore, the daughter was not permitted to appear in her father's place at the divorce hearings, although she would be allowed to testify as a witness.
The Marisco case teaches us that important legal actions such as divorce or designating a power of attorney should not be undertaken without guidance from an attorney. It also demonstrates the importance of proper representation, whether it be through an attorney, an attorney-in-fact, or a court appointed guardian. For more information on your divorce rights and legal options, please schedule a free consultation with the attorneys of Villani & DeLuca, P.C.