So I have a general power of attorney for my grandfather. It says I can sign contracts, initiate process, et cetera. It seems to me I can go into court and represent him, just like a lawyer. So why can’t I just become an amateur lawyer and get anyone that wnats to hire me to give me a power of attorney? Who needs law school?
Attorney? Yes, in regarsds to what you have power of attorney over only.
Y’aint a lawyer though.
No, you can’t represent your grandfather in court with a power of attorney. That is a misnomer. It’s actually a power of authority. It gives you authority to represent your grandfather in all things enumerated, as if your grandfather himself did the actual execution of the things enumerated. It is a revocable power and also death of your grandfather automatically revokes the power.
The older and more general meaning of the word “attorney” was “agent” or “substitute” – one that is authorized to act for another in the doing of certain specific acts. It’s not the same as an “attorney at law,” meaning, one who is admitted to practice before the courts of one or more jurisdictions.
A “power of attorney” allows you to act as the on behalf of the person who granted you the POA, and only for such acts as are listed in the POA. This does include the right to sign contracts and initiate process, but only because your grandfather had that right anyway, as a private citizen. The POA says that you can now do it for him.
I frankly don’t know whether a POA could include the right of a non-attorney to represent another in court. That’s an interesting question. On the one hand, you are allowed to represent yourself in court, whether you’re an attorney or not, by proceeding pre se (for the self). On the other hand, you are not allowed to represent anyone else unless you are an attorney at law (admitted to practice). So the question is whether the courts would consider representation done under a power of attorney to be a sort of pro se proceeding. I don’t know if they would or not; I do know they would not allow it to be done repeatedly and for hire, under what would be essentially a “sham” POA. In any event, having a POA doesn’t make you an attorney as the word is generally used today.
Rachin’frachin’ typos! The term for representing yourself is “pro se,” not “pre se.”
IANAL so whatever. You seem to be confusing the usage of the word “attorney” in that phrase “power of attorney” with the profession of attorney. You aren’t granted a license to practice law, even with respect to your grandfather. A general power of attorney just means you can handle his affairs for him with (almost) the same authority that he himself would have. I say almost because he can revoke your power of attorney at any time and should he ever become mentally incompetent, a general power of attorney is no longer valid.
Upone preview, I see Jodi and barbitu8 probably explained it better.
Regarding the point of defending yourself in court, I do believe that in certain cases, you are required to be represented by a lawyer. The idea is that in cases where the charge is serious enough and could merit the death penalty, it is assumed that a citizen couldn’t competently defend himself.
I doubt if a general POA gives the authority to represent some one in court. Court frown upon per se representation and would warn the party that he has the right to have an attorney. Of course one can represent oneself, but he’d have a fool for a lawyer (as the saying goes). I think a court would rule that that is a strictly individual thing which cannot be delegated to a non-attorney. You could not hire a non-attorney to represent you. He’d be practicing law w/o a license. But no one can stop you from representing yourself.
The right to appear pro se is prety much absolute, even in death penalty cases. The one exception seems to be if the defendant is mentall ill or unstable. In that case, the court might decide that he’s not competent to rationally decide to appear pro se. But the only time I’ve ever heard of that being an issue was in the Kaczin… Kazin… Kizyn… er, Unabomber case.
Soon-to-be lawyer (if I passed)
Are you sure that a power of attorney is no longer valid if the grantor becomes incompetent? My wife has a POA for her mother, and the main reason for it was so that she could handle her mother’s affairs if or when her mother became incompetent. If it was not valid in that situation, then what would be done to pay her bills, etc?
Incompetency would revoke the POA, but she would have to be adjudged incompetent in a court, which court would then appoint a conservator to handle her affairs.
In addition to what barbitu8 said, you can get a durable power of attorney which means it would be valid even if the person granting the power becomes incompetent.
One can set all sorts of controls in place to limit exactly what range of powers the POA should be granted and under what circumstances it can be revoked. Do a google search on “power of attorney” and you should get some informative hits.
No, you cannot legally represent your grandfather in court. If you were reasonably polite about it the court might continue the hearing for a few weeks to get a lawyer. A power of attorney is proof of an agency status to allow you to conduct business specified in the power of attorney, which can by its own terms be broad or narrow. But it cannot authorize an illegal act, such as aiding in or the practice of law without a license, which is a misdemeanor in California. You can have a durable power of attorney that allows you to continue to act during the incapacity of the grantor, for the benefit of the grantor. You can have a health care power of attorney that allows you to authorize when to keep or not keep providing medical care, again under certain parameters.
You can be appointed as conservator or guradian for someone who is under a legal capacity (at least in California) and then you may appear in Court without a lawyer as the conservator or guardian for the person you are acting for to get approval or be punished for your actions on their behalf. You announce your appearance as “John Doe, conservator for Grandpa Doe” you probably want to specify you are not a lawyer so as not to confuse the judge. Then if the judge doesn’t like your actions, the judge will order the local public administrator/conservator to appear on another date and make an “order to show cause” why you should not be removed as conservator/guardian. That means if you have any sense that you then go hire a real lawyer to present to the judge why your actions were in the best interests of grandpa. Once you are removed, the public administrator can seek reimbursement for your mistakes.
Not in Virginia.
Although there is no case precisely on point in Virginia, the State Bar has an advisory opinion that addresses the question squarely. The preparation of pleadings by non-lawyers is the unauthorized practice of law, as is the representation of the interest of another person before any tribunal - be it administrative, executive, or judicial.
The Virginia Supreme Court, in its Unauthorized Practice Rules, says:
The language in the power of attorney authorizing the attorney-in-fact to sue permits the grandchild to engage the services of an attorney-at-law and to direct or instruct the attorney-at-law regarding the grandfather’s objectives, approve a settlement, or to authorize a licensed attorney to file suit on the grandfather’s behalf. It does not confer the privilege to practice law.
The unauthorized practice of law is a crime in Virginia, and a private legal instrument or agreement, including a power of attorney, cannot authorize the performance of an activity that is illegal.
How about this?
Why does the State Bar get to forbid certain people from being Counsel? If someone has a right to Counsel, why does the state get to limit who can represent him? I know of course that there are risks to getting someone not trained in all the subtleties of legal mumbo-jumbo, but isn’t that the choice of the person, not the government?
How about courts in which agents who are not lawyers and are not under the supervision of lawyers may represent clients (e.g. small claims court or any number of administrative tribunals)?
[cynical] As long as it is a closed shop, the pickings are easy. Let the rabble in the door, and the competition would make it hard for lawyers to scam living. [/cynical]
[pragmatic] The judicial system relies on well trained and experienced people, including clerks, registrars, counsel, and judges. Take out any of these people, and the system grinds to a halt. [/pragmatic]
Technically, a person holding a power of attorney could be considered an “attorney in fact” (i.e. designated legal agent) as opposed to an “attorney at law”, as the latter would be a real lawyer who can engage in the public practice of law and receive fees for doing so. To act in the capacity of an attorney at law, you would have to be admitted to your state’s bar, meaning that you would become an officer of the court. In most states, this would require a degree from a law school, passing a bar exam, and meeting the character requirements set by the state bar.
In Virginia, the small claims division of the general district court has special rules that forbid any representation - by lawyers or anyone else. They also waive the formal rules of evidence and presentation.
I’m unaware of any administrative tribunals that would not be covered by the the Unauthorized Practice Rules in Virginia, which are, in pertinent part:
In general, the relation of attorney and client exists, and someone is practicing law whenever he undertakes, for compensation, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.
Or one, other than as a regular employee acting for his employer, undertakes, with or without compensation, to prepare for another legal instruments of any character, other than notices or contracts incident to the regular course of conducting a licensed business.
Or one undertakes, with or without compensation, to represent the interest of another before any tribunal - judicial, administrative, or executive - otherwise than in the presentation of facts, figures, or factual conclusions, as distinguished from legal conclusions, by an employee regularly and bona fide employed on a salary basis, or by one specially employed as an expert in respect to such facts and figures when such representation by such employee or expert does not involve the examination of witnesses or preparation of pleadings.
I freely admit this is not my area of expertise, however.
I can’t speak for your jurisdiction, but in mine (Ontario), the only people forbidden from being legal counsel are those of bad character, which for obvious reasons should not be lawyers. Everyone else has the “right” to become legal counsel.
Around here, all you have to do to become legal counsel is to become a member of the Law Society, which first will usually require you to have gone through some combination of formal testing and supervised practice.
Aside from taking a great deal longer and being far more rigorous, it’s really no different than a person’s “right” to go out and earn a driver’s licence.
So really, what you are asking is not why certain people are forbidden from being legal counsel, but rather why legal counsel should be regulated by a professional body which tries to ensure that legal counsel are competent.
Why the competency requirement? It no different than any other trade or profession. The public expects a reasonable degree of performance and protection.
That’s a very practical approach.
Up here (Ontario), there are no restrictions at all on representation in small claims court. A party may be self-represented, or represented by a lawyer, or represented by a bum off the sidewalk. The lawyers have a hard time justifying their fees relative to the size of the awards. The family friends and neighbours who stand up to represent parties tend to be flaming idiots. Our small claims process ought to take a close look at yours.
Up here the admin tribunals usually have their own specific rules of practice as part of their enabling legislation, but unless otherwise specified, they default to a general act (SPPA) which lets parties and witnesses be represented by lawyers or agents (ss.10 and 11). It works well, for in many instances para-legals can provide the specialized expertise at a fraction of the price of lawyers (e.g. landlord and tenant disputes).
To try to ensure competent para-legals (and also manditory E & O insurance), a professional self-regulating body will soon be created (possibly under the thumb of the Law Society), but I have not heard anything about any admin statute tightening up from “agent” to “para-legal”, so for the forseeable future it will still possible for bums off the street to represent parties at most admin tribunals in Ontario. However, if the legislation is changed, then tribunals would be able to start deciding what specialized para-legals would be qualified to stand before them. The Law Society is promoting this as a possible advantage (see p. 20).