Can a Lay Person Appointed Attorney-In-Fact Take an Oath on Behalf of Principal

[nyJoey]

My question involves court procedures for the state of: New York
The Attorney-in-fact is a lay person who did retain an attorney to handle an estate case. In response to interrogatories requiring responses under oath, the attorney-in-fact swore to the answers under oath making statements on behalf of the person who gave him the power of attorney. That person is not incapacitated in any way shape or form and could have signed the responses himself. I believe a person who is not an attorney by profession cannot represent a person before the surrogates court in New York. Doesn't the same principle apply here? the attorney-in-fact is not an attorney by profession? I need some help here understanding this.

[adjusterjack]

I need some help here understanding this.

Why do you need the help?

What is your role in the scenario?

[nyJoey]

Why do you need the help?

What is your role in the scenario?

I did not think my role matters, but to answer your question, I am the person who demanded and served the interrogatories. The questions being answered by a person in between are being answered without being answered. It seems the in-between person is providing cover to the person who should be answering. The person has an interest in not answering because his signature on the document would make him liable before a court overseas, and he is trying to avoid any personal link to the document he is being questioned about. I hope this helps, and I hope you would help me understand the legality of having this attorney-in-fact answering the question.

[llworking]

I did not think my role matters, but to answer your question, I am the person who demanded and served the interrogatories. The questions being answered by a person in between are being answered without being answered. It seems the in-between person is providing cover to the person who should be answering. The person has an interest in not answering because his signature on the document would make him liable before a court overseas, and he is trying to avoid any personal link to the document he is being questioned about. I hope this helps, and I hope you would help me understand the legality of having this attorney-in-fact answering the question.

I think that you may need to explain more of the background of the situation for us to get a clear picture of what is going on. I don't see how answering questions can make someone liable in a court overseas.

[nyJoey]

I think that you may need to explain more of the background of the situation for us to get a clear picture of what is going on. I don't see how answering questions can make someone liable in a court overseas.

The person being questioned presented a forged invoice in the U.S. through attorneys. The country where he resides and where the invoice came from can and will prosecute for the mere use of a forged instrument even if he claims lack of knowledge that the instrument was forged. By avoiding having any direct link to the forged instrument, he will be able to argue lack of direct evidence and blame errors in use and misstatements on others... we are dealing with a third world country where corruption abounds. If we can force him to answer the questions here personally, he will opt to deny the validity of the document which could end the dispute over the issue. I hope this helps.

[pg1067]

The Attorney-in-fact is a lay person who did retain an attorney to handle an estate case.

This is completely unclear. Whose attorney-in-fact are you talking about? Is it the deceased's attorney-in-fact? The attorney-in-fact for a beneficiary of the estate? Is this "estate case" simply the administration of a decedent's estate, or is it something else? What is the nature of the power of attorney ("POA") by which this person became attorney-in-fact, and what is the scope of the authority conferred by the POA? What does "handle an estate case" mean (i.e., handle it how)?

I believe a person who is not an attorney by profession cannot represent a person before the surrogates court in New York. Doesn't the same principle apply here?

No. It is certainly true that a non-attorney cannot act as an attorney of record in a court matter, but that's not what you described.

the attorney-in-fact is not an attorney by profession?

Despite your use of a question mark, this sentence is not a question. If you intended a question, I cannot discern what you might have intended to ask.

I need some help here understanding this.

Why? What is your role in the case? Your statement that you are the person who served the interrogatories doesn't answer that. Are you also represented in the "estate case" by an attorney?

The questions being answered by a person in between are being answered without being answered.

Huh?

[nyJoey]

Whose attorney-in-fact are you talking about? Is it the deceased's attorney-in-fact? The attorney-in-fact for a beneficiary of the estate? Is this "estate case" simply the administration of a decedent's estate, or is it something else? What is the nature of the power of attorney ("POA") by which this person became attorney-in-fact, and what is the scope of the authority conferred by the POA? What does "handle an estate case" mean (i.e., handle it how)?

The attorney-in-fact (AIF) represents one of the beneficiaries in the estate accounting procedure. It is this same AIF who retained another attorney to represent him, the AIF, on behalf of the beneficiary in the proceeding. The Notice of Appearance states that "beneficiary name" by "AIF name", his AIF, hereby appears by his attorneys "name of firm retained", and demands that ….". The POA given to the AIF is labeled Estate POA. The POA states that "beneficiary name" hereby appoints "AIF name"... my true and true and lawful attorney for me and in my name to do and execute all following acts and things; that is to say: 1. To demand, sue for, recover, and receive... all my distributive shares... and for such, when received, to give good and effectual receipts or discharges; 2. To commence and prosecute all actions and proceedings... for the payment and recovery of my share in the said estate..., and the enforcement of my rights therein, as fully and effectually as I myself could do if personally present; 3. To settle all accounts relating to the said estate... and to compromise any disputes concerning the same; and 4. To appoint any attorney or attorneys under him for any of the purposes aforesaid. The POA adds a new paragraph stating: "Hereby ratifying and confirming whatsoever my said attorney or his said attorney or attorneys shall lawfully do or cause to be done in the premises by virtue of these presents."

It is certainly true that a non-attorney cannot act as an attorney of record in a court matter, but that's not what you described.

The question would then be: based on the same principle, can the AIF who is a lay person, make an oath on behalf of the person who appointed him?

Despite your use of a question mark, this sentence is not a question. If you intended a question, I cannot discern what you might have intended to ask.

You are correct... I did not intend the question mark.

Why? What is your role in the case? Your statement that you are the person who served the interrogatories doesn't answer that. Are you also represented in the "estate case" by an attorney?

I believe I answered this question in my response to llworking above... please read it. I add that I am not represented by an attorney, which explains my desperate request for answers here.

Huh?

I guess this is also clarified by my answer to the previous question.

I would really appreciate your input... I really need to know whether I should object to the answers to the interrogatories being sworn to by the so called AIF.

What is your role in the case? Your statement that you are the person who served the interrogatories doesn't answer that. Are you also represented in the "estate case" by an attorney?

I forgot to mention that my role in the case is just another beneficiary objecting to an invoice presented for reimbursement from the estate by the beneficiary represented by the AIF.

[adjusterjack]

can the AIF who is a lay person, make an oath on behalf of the person who appointed him?

Obviously he CAN do it because he IS doing it.

You can certainly object to it on the grounds that he is engaging in the unlicensed practice of law by representing the absentee defendant and ask the court to compel the actual defendant to appear.

Though how successful that might be is iffy since the defendant is in another country.

You may have bitten off more than you can chew by trying to sue somebody in another country.

[Taxing Matters]

My question involves court procedures for the state of: New York
I believe a person who is not an attorney by profession cannot represent a person before the surrogates court in New York.

Correct.

Doesn't the same principle apply here? the attorney-in-fact is not an attorney by profession?

The person in question is apparently signing responses for the defendant. There are two problems with that. First, the person signing can only attest to things for which he or she has actual knowledge. And second, to the extent that the responses must come from the defendant something submitted by someone else won't suffice. But it is not, by itself, a problem of unauthorized practice of law.

[pg1067]

Assuming the AIF's actions are permitted under the terms of the POA, there is nothing wrong with the AIF verifying the interrogatory responses.

It's worth pointing out that many attorneys are very sloppy when they have people sign interrogatory verifications. Among other things, verifications often say something like, "the foregoing responses are true of my personal knowledge except where expressly stated on information and belief," but it is fairly rare for responses actually to be expressly stated on information and belief. In corporate settings or where an AIF is involved, it is uncommon for the verifier to have personal knowledge, so a verification that is made on personal knowledge is often improper.

Determining whether that's applicable to your situation would obviously require reviewing the responses.