3

Anyone can represent themselves in a court of law, if he or she doesn't want, or can't afford, a lawyer. On the other hand, only lawyers who have passed the bar in a state are allowed to represent others.

Suppose you have an aging parent (or other relative) that is certifiably "incompetent" but has given you the power of attorney. From the sound of it, this means that you would be able to represent this person "pro se" or through other means.

Is this true? Or is it a case where "power of attorney" doesn't confer the right to act as a lawyer for someone who is incompetent, even though it sounds like it does (to a layman).

Are there at least some forums, such as small claims court, where the "power of attorney" gives you the right to act as someone's "lawyer?"

  • Possible duplicate, or at least appears to be answered here. – feetwet Jun 11 '16 at 17:56
  • I'm tempted to vote to close given the similarity to Cicero's question, but this question is both more general (not simply criminal) and better framed – Pat W. Jun 11 '16 at 18:32
  • For example, can a person represent Mom who is incapacitated in small claims court where attorneys are generally prohibited. – user6726 Jun 11 '16 at 18:53
  • @feetwet: No longer a duplicate. The other question was about "criminal." Mine was "general" including civil forums such as small claims court? – Libra Jun 11 '16 at 20:01
  • A related question: even if the person with power of attorney (sometimes called an attorney-in-fact) can't represent the principal in court, would they be able to hire a lawyer to act on the principal's behalf? – Nate Eldredge Jun 11 '16 at 20:45
4

For most civil matters the answer is "no". Small claims court is special since there are restrictions on using attorneys, and in that context, it depends on the rules. In Indiana, the answer in their manual is no

Small Claims Rule 8 allows a person to appear at trial and, if he or she chooses, represent himself or herself and avoid the cost of hiring an attorney. However, a person is allowed to hire an attorney and have the attorney appear with him or her at the trial. A person who has power of attorney for another person may not represent that person in court.

"Have the attorney appear with him or her at the trial" is pretty unclear, since it doesn't say whether the attorney can represent them. Rule 8(C)(1) states that "A natural person may appear pro se or by counsel in any small claims proceeding", which clarifies that they don't just mean "have at your side". In Minnesota, the answer is more emphatic "no":

A power of attorney does not authorize a nonlawyer to file a claim, appear, or in any other way “represent” a natural person in conciliation court.

As for allowing attorneys in small claims court,

Attorneys are only allowed to represent parties in conciliation court with permission of the court

(emphasis added). The situation in California is somewhat of a hybrid, but as I read it, it means that the incapacitated person is out of luck, which strikes me as surprising. They say

Self-representation is usually required. There are, however, several exceptions to this general rule: If the court determines that a party is unable to properly present his or her claim or defense for any reason, the court may allow another individual to assist that party. The individual who helps you can only provide assistance—the individual’s participation in court cannot amount to legal representation, and the person can’t be an attorney.

So this is most unlike Indiana is that you can't have an attorney, and all the person can do is "assist". So unless they just waive the rules, this means that if the individual is incapacitated, they cannot have recourse to small claims court.

  • This would generally be true in most U.S. jurisdictions usually as part of unauthorized practice of law rules promulgated by a state supreme court. A few jurisdictions allow officers of companies to represent the companies in small claims court and/or administrative proceedings like unemployment hearings, but I am not aware of cases where someone with a POA can do so. The U.K. has something similar to the California rule, but that is very much the exception in U.S. law. – ohwilleke Jan 20 '17 at 6:24
  • The British equivalent is called a McKenzie Friend. courtwithoutalawyer.co.uk/… – ohwilleke Jan 20 '17 at 6:32

protected by BlueDogRanch Jun 26 at 23:07

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