Party’s Power of Attorney Cannot Appear In Divorce
- August 1, 2014
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In the recent New Jersey Superior Court case, Marsico v. Marsico, the Family Court denied a litigant’s attempt to appear in his divorce proceedings through a designated power of attorney (POA) in a case of first impression for the court. The parties in this case are both in their eighties. They married in 1978 and remained wed for thirty-five (35) years. Together, the parties do not have any children, but the Defendant has an adult daughter from a previous marriage named Laura Mertz. In 2012, the Defendant executed a POA which appointed Ms. Mertz to be his “true and lawful attorney-in-fact” to govern over his affairs, and empowering her to deal with virtually all of his financial affairs. The provisions contained in the power of attorney (POA) also authorize Ms. Mertz to “institute, prosecute and defend any actions or proceedings brought in any court” on her father’s behalf. Ms. Mertz’s husband, Timothy Mertz, is listed in the POA as the Defendant’s alternate attorney-in-fact. Three months after the execution of the Defendant’s POA the Plaintiff filed a Complaint for Divorce against the Defendant seeking the equitable distribution of the parties’ assets. Subsequently, the Defendant also retained the services of an attorney who answered the Plaintiff’s Complaint with a Counterclaim on the Defendant’s behalf under Rule 5:4-2. The Defendant did not personally sign the certification page in these documents. Instead, Ms. Mertz signed as the Defendant’s power of attorney. When the Plaintiff’s counsel received the Defendant’s Answer and Counterclaim, they objected to the fact that Ms. Mertz signed on behalf of the Defendant because the Defendant had not be adjudicated to be incompetent. Attorneys for both parties stipulated to the court that their research did not reveal any prior case law in New Jersey addressing the issue of whether a litigant in a divorce proceeding can appoint a third person to appear on his or her behalf. According to the court, generally a competent person has the right to appoint another person to act on his or her behalf upon the execution of a written POA, as codified in N.J.S.A. 46:2B-8.1. Once a person is designated as another’s attorney-in-fact he or she can conduct legal affairs such as retaining and communicating with a lawyer and authorizing an attorney to act on a principal’s behalf. However, the statute does not expressly authorize a person the right to delegate the ability to render written certifications or oral testimony on the principal’s behalf. In fact, the court found that a competent person cannot designate another person, either through a POA or any other means, to testify in his or her place without the consent of the other party or the court. In the present case, the Defendant had never been declared to be incompetent and a court cannot and should not presume that just because a litigant is elderly he is unable to appear in court, understand legal documents, or function independently. State v. R.W., 104 N.J. 14, 21-22 (1986). The court noted that no evidence was submitted in this case indicating that the Defendant was suffering from any illness or injury that would restrict him from participating in the divorce proceedings. Therefore, the court held that if the Defendant wished to proceed with his Answer and Counterclaim in the divorce he must sign and file his pleadings and certifications within the time frame provided by the rules of the court; Rules 5:4-2(c), 5:4-2(f), and 5:4-2(h). If you are involved in a contested divorce and would like information regarding your rights and obligations it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about contested divorce, equitable distribution, alimony, child support, or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.