Can I Give a Power of Attorney to Someone to Sue Another While I Am Deployed?
Full Question:
Answer:
A power of attorney is a legal instrument that individuals create and sign that gives someone else the authority to make certain decisions and act for the signer. The person who has these powers is called an "agent" or "attorney-in-fact." The signer is the "principal." The principal must have mental capacity to make the power of attorney at the time of signing. As a principal, if the principal's decisions conflict with those of the agent, the principal's decision will govern, assuming that the agent confers with the principal prior to taking an action. If an agent has acted on the principal's behalf and acted within the scope of authority granted by the power of attorney, then the principal may be obligated by the terms and conditions of his actions.
With a general power of attorney, the agent has broad powers to act in the principal's best interests. However, sometimes a power of attorney is limited so as to grant the agent authority to act only in certain manners, such as to handle finances or real estate transactions.
The answer will depend on all the circumstances involved, such as whether you are named as the plaintiff, the specific language used to grant authority to the agent to sue, and whether the agent may be construed as practicing law. Please see the cases at the following links for further discussion:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=al&vol=1990403&invol=2
http://www.nhbar.com/pdfs/Holmes.pdf
Please see the following OH court rule:
RULE 17. PARTIES PLAINTIFF AND DEFENDANT; CAPACITY
(A) Real party in interest. Every action shall be
prosecuted in the name of the real party in interest. An
executor, administrator, guardian, bailee, trustee of an
express trust, a party with whom or in whose name a contract
has been made for the benefit of another, or a party
authorized by statute may sue in his name as such
representative without joining with him the party for whose
benefit the action is brought. When a statute of this state
so provides, an action for the use or benefit of another
shall be brought in the name of this state. No action shall
be dismissed on the ground that it is not prosecuted in the
name of the real party in interest until a reasonable time
has been allowed after objection for ratification of
commencement of the action by, or joinder or substitution
of, the real party in interest. Such ratification, joinder,
or substitution shall have the same effect as if the action
had been commenced in the name of the real party in
interest.
(B) Minors or incompetent persons. Whenever a minor or
incompetent person has a representative, such as a guardian
or other like fiduciary, the representative may sue or
defend on behalf of the minor or incompetent person. If a
minor or incompetent person does not have a duly appointed
representative the minor may sue by a next friend or defend
by a guardian ad litem. When a minor or incompetent person
is not otherwise represented in an action the court shall
appoint a guardian ad litem or shall make such other order
as it deems proper for the protection of such minor or
incompetent person.
