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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Consumer Protection Law
Satisfied Customers: 19471
Experience:  B.A.; M.B.A.; J.D.
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Esq. I have been looking at New York General Obligations

Customer Question

For Attorney Phillips Esq.I have been looking at New York General Obligations Laws Article 5 Title 15 Section 5-1502H, and it appears as though from what it indicates there, and from what you hinted at, that someone who holds a POA for another might actually be able to step into the shoes of the principal and act as if they were the principal. That might be a way to get around the rule that no one without a license to practice law may represent another person.I got conflicting opinions from attorneys and clerks when I asked this question that went all the way from yes, to it is up to the judge, to I don't know. But when I looked it up, I found a case where that was not allowed, and I think that it was from an appeal, so it was precedent. However, I didn't save that case, and now I can't find it. I remember it said that no one can step into the shoes of someone else and act as if they were that person in court pro se, because by definition, pro se means "in person", and so by the strict definition, that means that no one else can actually be that person. And I remember that the ruling said that because no one else can actually be the principal, then it would constitute representation, and representation is not allowed by law in NY without a license to practice law.Do you know to what extent an attorney-in-fact can step into the shoes of the pro se litigant and act on their behalf with regards ***** ***** and court proceedings in NY? Can the attorney-in-fact actually speak for the litigant in court, argue issues of law on behalf of the litigant, cross examine witnesses and take depositions, and file motions and responses on behalf of the litigant? In other words, perform all of the acts that would be afforded to an attorney?
Submitted: 4 months ago.
Category: Consumer Protection Law
Customer: replied 4 months ago.
It looks like it is allowed for the attorney-in-fact to actually represent the principal in a bankruptcy proceeding, but I don't see where it indicates that would be the case in any other court.Section 5-1502H "To appear for, to represent and to act for the principal with
respect to bankruptcy or insolvency proceedings"
Expert:  Phillips Esq. replied 4 months ago.

Hello: This isCustomer Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

Expert:  Phillips Esq. replied 4 months ago.

Let me me doublecheck and get back to you on this. I know in bankruptcy proceedings, the Attorney-in-fact can indeed represent the principal...

Expert:  Phillips Esq. replied 4 months ago.

By my literal reading of the New York General Obligations Laws Article 5 Title 15 Section 5-1502H indicates that the POA can indeed act on behalf of the Principal in all Court proceedings. The POA is the pro se litigant in that instance. If the POA is prevented to step in the shoes of the Principat that would mean that a now mentally incapacitated person who gave POA to another person cannot have his day in Court without an Attorney. That would constitute actionable discrimination by the Court since there is no requirement that an individual be represented by an Attorney in order to prosecute or defend his case. Nonetheless if you find the appeal case that states otherwise, kindly forward it to me for review.

Also, see New York Judiciary Law Article 15 Section 478.

Expert:  Phillips Esq. replied 4 months ago.

Additional information: I found something that indicates that a POA who is not an Attorney cannot appear on behalf of the Principal. This is not a New York State Court source. This is a federal Court's source:

"The right to appear pro se in a civil case in federal court is contained in a statute, 28 U.S.C. § 1654. Thus, anyone can appear pro se, and anyone who appears before the Court without an attorney is considered pro se. There are, however, certain limitations to self-representation, such as:

  • corporations and partnerships must be represented by an attorney.
  • a pro se litigant may not represent a class in a class action.
  • a non-attorney parent may not appear pro se on behalf of a child, except to appeal the denial of the child's social security benefits."

http://www.nysd.uscourts.gov/prose

New York Court's definition of pro se: pro se: a party who does not retain a lawyer and appears for him/herself in court.

http://nycourts.gov/COURTS/nyc/civil/definitions.shtml#p

This goes back to my discrimination argument that if POA is not allowed to act on behalf of the Principal without hiring an Attorney, then the disabled person has been discriminated against since if he were not disabled he would not have been required to hire an Attorney to represent himself.

Customer: replied 4 months ago.
Actually, that raises another question that came up when I was asking the attorneys about this; whether or not the attorney-in-fact would first need to show that the principal is disabled and have to obtain a guardianship (or become a guardian ad litem) before they would be able to step into the shoes of the principal.That poses another interesting question in my case because my mother still has all of her marbles and she does not really require a guardianship at this point, but she does have early Alzheimer's, and there is no way that she has the capacity to be able to represent herself.I wish that I could find that case that I had. I remember that is specifically said that no one else can act as if they were the principal pro se; only the principal can appear for himself pro se, and anyone else that does appear on the behalf of the principal to represent them, would require an license to practice law. It must have been an appeal, or else it would not have been listed online.Clearly that is not the case in bankruptcy court, I suppose the question is whether or not it is the case in civil court. I am thinking about taking a case for her into small claims. I might be able to get away with it there.
Expert:  Phillips Esq. replied 4 months ago.

At this time I would err on the side of caution. If you filing a Small Claim, have your mum sign the papers. If possible, your mum should be present in Court and you can just assist in speaking to the Judge. That would technically not be the same as legal representation--almost acting as the interpreter.

You may want to apply for Guardianship now on her behalf. Courts view guardianship more favorable than a POA.

Customer: replied 4 months ago.
I wonder what will happen if I file the case on her behalf in small claims pro se, have her sign it, and we will show up in court together. The question then is what will happen if I make her case to the judge on her behalf, and I have to do all of the explaining of what happened, but I don't have the guardianship.I am the only witness, and at the time of the injury, I was handling everything pertaining to the case against the defendant. I am the one who has obtained all of the evidence and the documentation, and I am the only one who can accurately explain what happened and why.My mother does not have the capacity to understand it all and make a case to the judge.
Customer: replied 4 months ago.
Since we will be in small claims, then it might be possible, because the rules of evidence are not the same, and there are not going to be procedural issues that would require an attorney. I would simply be making her case on her behalf, and I would be the one to explain what happened, how she was damaged, and present all of the evidence to support the case.
Customer: replied 4 months ago.
http://www.seniorlaw.com/guardianship-for-incapacitated-people-in-new-york-under-article-81/After reading this, I don't think that the guardianship is going to make sense in our case. First, I would have to prove (with expert testimony) the need for one, and there really isn't a need because at this point my mother only has short term memory loss, and otherwise she is competent. You have to place a bond in the amount of the assets, and I don't have that, and there is a chance that the court might appoint someone else.It can be expensive and take a long time, and if you become one, then you have to send reports to the court. And anyway, it looks like it is basically a court appointed POA (with additional powers of decision making), in a case where the person has become incapacitated by dementia, and there was not a POA already in place. So it does not look like something that I should get involved with. It looks like a guardian ad litem is more for children, or for an elder person who need someone to assist them in housing court, and they are appointed by the court pro bono for impoverished people who cannot function on their own.And from what I can discern from what you are saying, I don't see how anyone could make the case that the pro se litigant has the right to have someone step in their shoes unless they show that they are mentally incapacitated, and that would necessitate a guardianship. And even then, although your argument about discrimination makes a lot of sense. I am not so sure that the guardian would have the right to step into the shoes of the principle and function as if they were the pro se litigant. One of the attorneys that I had originally asked told me that it would be a REAL side show in court if I asked to do that. I still can't find that case that I had in which the judge ruled against it.So the question now is what would happen if my mother showed up in small claims without an attorney, and I was there to explain everything and make the case to the judge, and present all of the evidence? I don't know about the civil court of NYC, or the Supreme Court, but I might be able to get away with it in small claims though.
Expert:  Phillips Esq. replied 4 months ago.

Thank you for the additional information.

At this time, I will opt out to give another Attorney the opportunity to comment on your case.

Best wishes,