With life expectancies among today’s senior citizens longer than ever, more and more adult children are finding themselves sharing the responsibility of caring for their aging and elderly parents, including taking part in their parents’ legal and financial affairs as an appointed Power of Attorney. Holding Power of Attorney can be helpful when it comes to making decisions concerning medical billing or nursing home payments. But what happens if an elderly parent decides to divorce?
A recently published opinion from New Jersey’s Ocean County Superior Court examined the novel question of whether or not a litigant in divorce proceedings could appear and testify through an attorney-in-fact designated by Power of Attorney (POA). The court declined to allow this, for multiple reasons, and presented some clear guidelines for parties and attorneys to follow if presented with similar situations in the future. The case, Marsico v. Marsico, involved an adult daughter holding POA for her elderly father who had been sued for divorce by his second wife.
According to ruling summary, the 84-year-old defendant had appointed his daughter from a previous marriage as his POA to conduct various financial activities on his behalf, as well as “to institute, prosecute and defend” any actions in court. Shortly thereafter, plaintiff, represented by divorce and family law attorney Sylvia Breitowich of Weinberger Law Group, sued defendant for divorce. The daughter signed the certification filed with defendant’s answer and counterclaim citing her POA status, and plaintiff objected.
Plaintiff argued that even if a party’s attorney-in-fact could appear for the party in divorce court, in this case there was a conflict of interest, as the attorney-in-fact was defendant’s adult child, who had a potential financial interest in the outcome of the case. Plaintiff also pointed out that there was no reason defendant could not appear on his own behalf, as he had never been adjudicated as incompetent. Defendant countered that authorization to conduct legal affairs was a legitimate purpose of a POA, and that no court rule expressly prohibited an attorney-in-fact from participating in divorce proceedings.
The court acknowledged that a New Jersey POA could be used to allow appointed representatives to conduct legal affairs, including retaining and communicating with attorneys, but stated that this did not mean that a representative had any authority to testify on a party’s behalf in court, or to render written testimony via affidavits or certifications. The court stressed that allowing this would be particularly inappropriate in matrimonial proceedings, which are so heavily dependent upon party testimony regarding private dealings and communications. Allowing a third party to testify upon information supplied by a litigant would multiply the already inherent risks of incomplete or unreliable testimony, prevent certain testimony from coming into court at all due to hearsay objections, and remove the safeguards to credibility normally presented by the opportunity to cross-examine a witness personally and observe the witness’s demeanor.
The court distinguished this case from cases in which a party has been declared mentally incompetent, noting that in such a situation, a guardian previously appointed by the court may indeed present testimony on the party’s behalf. The court further noted that if there has been no prior determination of incompetency and no appointment of a guardian, but present circumstances indicate that the party may not be competent to testify in person, the court may appoint a “guardian ad litem” (GAL) to assist the party.
Despite this defendant’s advanced age, there was no evidence that he was not competent to testify. The court therefore denied without prejudice his request to appear through his adult daughter, and stated that if grounds existed for appointment of a GAL, either attorney in the case could present an application requesting such an appointment. A footnote to the decision indicates that no application was ever presented to court. Defendant appeared in person, and the case eventually settled.
Why is this case important? As Ms. Breitowich told the New Jersey Law Journal, “statistics in New Jersey, as well as nationwide, point to an uptick in the number of divorces among older spouses over the age of 60. When these older adults divorce, it’s understandable that adult children will be concerned about what happens. By establishing clearer boundaries, as the outcome of this case does, it can help adult children understand their role in helping their parent in divorce and the parent’s own obligation to participate in proceedings.”