Re: Can power of attorney stop a foreclosure - Posted by Just Some Guy
Posted by Just Some Guy on July 13, 2005 at 24:50:34:
Hi, First I’ll make the same disclaimer as River City did; I’m not an attorney, so verify all facts yourself, and I’m not giving any legal advise, if you have questions you should check with an attorney. So here is my two-cents worth.
A Power of Attorney is probably the biggest act of trust that one person can place in another. You should keep that in mind in every action you take on their behalf.
A Power of Attorney is a very powerful instrument, in giving it, your friend or family member was placing a tremendous amount of faith in you. There are laws that attempt to offer some protection, but there is alot of potential for financial abuse that the law cannot prevent simply because of the very nature of what a POA is. The POA gives you the power to do almost any lawful act you want, but in accepting it you have a moral obligation to consider the following information in every thing you do when acting under the POA:
FIRST (AND USUALLY FOREMOST)-is it something that the person would have wanted to do, been willing to do, and probably done themselves if acting on there own behalf when they were capable,
SECOND-is it in the persons best interest to do whatever act or thing you are planning.
In all your decisions you should consider those two items in that order and balance them based on the importance of the situation. In some cases the second should overide the first, but not in all cases. Never allow pressure from family members or others cause you to overide those two things. Trust was placed in you for a reason, you should never betray that trust. In most cases if you know absolutely what the person wanted you should act on their wishes even if you personally disagree with them. That’s the hardest judgement call you have to make, remember you are acting as their voice not your own.
Basically the point of a POA is to allow someone else to act in your name in your absence. Effectively your voice represents there voice and your signature is representing there signature whenever you exercise the authority given you. It can be very specific in what powers are given, or very general, or somewhere in between. It can be Durable(lasting till death unless revoked) or Limited to a specific time period. The basic rule in any case is that in whatever authority you were given in the POA, you can do any lawful act or thing for them that the person could do themselves if they were personally present.
Remember, most people have never seen a POA. When you go into a situation with a POA, the person your dealing with may not understand what their legal responsibilities regarding it really are. In some cases I have a copy of the state statute with me just in case I need to educate them. Most likely whatever company or institution your dealing with will need to run it past there legal dept before acting on it. You should accept that and be gracious about it, but if the matter your dealing with is time sensitive be sure to give them written instructions of what your requesting, and have them sign that they recieved it, if they refuse to accept anything then have them sign that they are refusing to accept it, because if they delay beyond a reasonable amount of time, or refuse to accept it then you may be able to hold them responsible for anything that happens due to the delay. Check your states stautes to be sure.
The laws regarding POA will be similar in all states but if you’re in California you should check out the Uniform Statutory Form Power Of Attorney Act (California Probate Code Sections 4400-4465) It is available online.
Now the answer to your question depends on a clarification of the question. Are you talking about a bankruptcy for yourself? or for the person you have a POA for?
If its your own bankruptcy then you should not be connecting it in any way whatsoever to any of the persons business. You have a fiduciary, moral, and in most cases a legal responsibility to keep your own personal affairs seperate from theirs. And as River City said I would probably be concerned if I had given a POA to someone who needs to file a bankruptcy in their own affairs.
Now if you thinking of filing a bankruptsy for the other person, then it depends on exactly what powers were granted in the POA. If it was pretty broad in general, or if it specifically allows that type of action, then the answer is probably ‘Yes’. If it would be possible for the person to file bankruptcy themselves, then if the POA grants you the authority to act in that matter, then you should be able to do it for them. The big concern you should have in the matter is if doing so is in the persons best interest. If it is, and especially if it is something the person would have done him or herself, and if it could save the persons assets then it would be an appropriate thing to do.