A written power of attorney allows the "principal" to empower another person to make financial, medical or real estate decisions on his behalf. The individual receiving the power is the "attorney-in-fact." An attorney-in-fact must be an adult who is competent and mentally able to make formal decisions on a principal's behalf. Generally, a power of attorney does not provide an attorney-in-fact with the legal ability to file documents in court, such as in divorce proceedings, or to initiate court actions.
A power of attorney can be durable or specific. A specific power of attorney allows an attorney-in-fact to perform her powers for a limited time or for one single transaction. For instance, a specific power of attorney allows an attorney-in-fact to sign settlement or closing documents during a real estate settlement. A durable power of attorney lasts until a principal revokes the power or becomes mentally incompetent. However, a principal can insert a clause into his power of attorney document stating the power will not terminate upon mental incapacity.
A power of attorney does not allow an attorney-in-fact to appear in court on a principal's behalf, to file legal documents on a principal's behalf or to answer or receive legal documents on a principal's behalf. Typically, a real estate closing agent or attorney files a power of attorney document with the loan documents and deed for recording purposes. A power of attorney cannot be used to initiate divorce on another person's behalf.
When issues arise regarding the validity of an attorney-in-fact's actions pursuant to a power of attorney, state laws govern the outcome. Although state laws can vary, all states require that an attorney-in-fact and principal be of sound mind and over 18 years of age. A principal has a legal right to revoke a power of attorney at any point. Most states allow attorneys to file a legal divorce complaint on a client's behalf without requiring the client to appear in court.
Because a spouse cannot use a power of attorney to initiate a divorce, initiating a divorce by publication may be another option. Many states allow spouses to file their divorce complaints by publication and obtain default divorce judgments if they are unable to locate the other spouse. Service through publication typically involves publishing a notice in a local newspaper circulated throughout several counties.
Since divorce laws can frequently change, do not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your state.
Jill Stimson has worked in various property management positions in Maryland and Delaware. Stimson worked for the top three property management companies in the commercial industry and focuses her career on property building logistics and tenant relationships. She holds a Juris Doctor and a Bachelor of Science in psychology.