I am a non-attorney NYS DPOA for a 58 yr. old indigent mentally impaired next friend. (non-institutionalized) She has asked me to assist her in bringing an action to modify her current Divorce maintenance order from durational to non-durational due to her deemed disability for life.
She has been denied representation by several area private attorneys and has been denied representation by several area legal aid agencies.
On it's face, the statute says NYS GOB Title 5, Section 1502H authorizes a NYS POA the privilege to "prosecute and defend before any court or tribunal" as their principal as a non-attorney. Section 15 does not say anywhere one must be an attorney-at-law to advocate in court or to do any other duties that are set forth within Sect.1502H or elsewhere. Many government agencies allow non-attorney POA's to represent others.
As such, does a NYS DPOA have the legislated right to stand in the "name, place and stead" of the principal in any an all capacities as attorney-in-fact
and agent with full power and authority to do and preform each any every act and thing required and necessary to be done as the principal could do if personally present and acting? Some say yes. Some say no.
I have been denied any right to advocate for my principal by NYS Family Court. Only told to sit in back and watch, while two Court Officers stood behind me telling me I will be arrested if I make a sound; while my principal was badgered by the Judge and opposing counsel about who she has sex with until she cried. Also this POA was not allowed to file papers or inquire specifics of case, etc. from Court.
This public obligation statute, (POA) NYS General Obligations Law, was designed for the public to assign someone to manage their affairs and stand in name, place and stead of the grantor. Also, original Hand Bills set forth a POA was to avoid the expense of a lawyer and to have a trusted friend, family member or loved one represent them of their choice.
The peoples POA is being systematically eroded away by the Bar.
NYS Assembly Bill A05630 now being negotiated, is designed to mandate an attorney must certify that the 'POA document is legal' when asked to from any 3rd party. This in effect makes any Principal/Agent libel to pay an attorney-at-law to vet a POA document. The attorney-at-law would seem very apprehensive of "certifying" a document he/she did not draw-up. As such, one would now need to pay a attorney-at-law to have a "legal" POA.
The "Power" needs to be put back in "Power of Attorney". The statutory rhetoric must sanction a non-attorney POA, "to defend or prosecute before any court or tribunal" issues as it might be done by principal. Non-lawyer advocates must follow the Rules of the Court as attorney-at-law must. There is many recourse for any abuse by legal laymen or lawyers.
A NYS POA is now deemed the principal's personal SSA representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Sect. 1302d and applicable regulations. As such, a SSA non-attorney personal representative is authorized to bring, defend or prosecute an action in behalf of the principal in Federal Court as the SSA beneficiary's personal representative.
Does your friend receive Social Security Disability? If not, I would look into that. Find a SS lawyer. They will get paid according to the amt of retro pay she receives. You may have to do the leg work in getting doctor files showing what her disability is. The more u have the faster things will go. If approved, she will get Medicare and Medicaid.
If she does get SSD, she maybe able to get SSI, supplemental income, to increase her income. There is HUD for housing vouchers. Foid stamps. Help with utilities. Social Service should be able to help.
The questions ur asking should be aimed at a lawyer. We are layman here and live all over the US and other countries. Occasionally a Pro will enter the thread.
As you are not an attorney and this issue is complicated I would advise your client to hire an attorney.
If anything the client needs a divorce attorney to renegotiate the terms of her divorce but I haven’t heard of many alimony judgements changed after the divorce is final. Your client is divorced. The ex & your client must been satisfied with the financials when they settled.
I don’t see why the ex should have to pay money for care Aredyou sure “denied” representation is the correct term when “declines”
Not sure if DPOA gives u the authority to represent someone in the way ur trying to do. There are other types that are for specific reasons. Like when someone can't be at the sale of property and they assign another person to represent them. Or like me when my daughter went to England with my Mom I had her assigned POA to make decisions in case something happened to my daughter.
I think ur friend should forget about getting anything out of the ex. I think she needs to find help. Thats what ur DPOA can do, get her help.
There is a reason the lawyers didn't take her case. Maybe money or because she can't win.
If I remember correctly, acting in the "name, place and stead" could be a Next Friend suit. I'm not sure how it would interface with authority granted pursuant to a DPOA, but it's worth exploring.
I'm wondering if the issue in this situation is b/c your friend is "mentally impaired". Was this issue raised by any of the attorneys you consulted, and more importantly, were these attorneys practicing divorce, or "family law" attorneys?
Was she in this condition when the divorce was finalized? If not, then there's been a change of circumstances that might dictate the court revisits the alimony situation. Do you have or could you get medical supporting documents as to her mental ability?
Why don't you try to get her help. Get her evaluated and apply for SS disability if she doesn't have it already. Get an SS lawyer off the bat. They cannot charge for their services. Their fee is paid according to the retro pay the reciprant gets when they are OKd to receive SSD. Along with the SSD she will get Medicare and Medicaid. She then could get a voucher to help her with housing. Electric and heating help. Food stamps. There are HUD apts that take 30% of ur income for rent. In my area they are pretty nice.
Yes, a lot of paperwork, dr visits ect but in the end she will be on her own. You could actually get her Medicaid now and vouchers, etc. There is SSI a State Supplimental income she may qualify for while u apply for SSD. Go to your local Social Service Dept to see what is available. With Medicaid, she may get help for her mental condition.
In my opinion going after her X is a lost cause. I think she needs to work on what she maybe able to get in the way of help and this is where you can use your POA.
What you certainly can do as her POA is use her funds to get her a lawyer. Have you yourself attempted to do that? Also, does your instinct tell you whether or not she's got a case worth bringing?
Whatever family and other courts may say about encouraging diversity and increasing access to justice and welcoming applicants "in person" it's all politically correct baloney (I'm in the UK, by the way, and it's no different here). Not judges, not lawyers, not court officials, not anyone in the legal system has time for amateurs. It's a closed shop just like in every other profession, all the world over.
So if you seriously want to focus on furthering your friend's aims, get her a lawyer.