Despite what you may have seen in Perry Mason reruns, astonishing court revelations are not the norm. The modern American court system favors open disclosure, and evidence exchange before trial is encouraged to avoid surprises. Arguably, all documents relevant to a legal dispute must be produced and exchanged with the other side, if requested, and powers of attorney are no exception. On the other hand, courts will not indulge curious relatives by allowing them to see private documents unless the matter relates somehow to issues in dispute.
Powers of Attorney
A power of attorney is a legal document. The person making the power of attorney, called the principal, uses the document to name an agent to act for her in specified circumstances. Most powers of attorney call for the agent to make decisions in either financial or health care matters. The document can limit the agent's authority to one sole transaction (like the sale of a vehicle) or time period (like while you vacation abroad); alternatively, it can create an enduring agency that continues even if the principal becomes incapacitated.
Read More: Power of Attorney Rules
In some states, you must sign a power of attorney in the presence of a notary while others require witnesses. But the document itself remains essentially private, with originals kept by the principal and agent. It is not filed with the court but shown to persons or businesses who need proof that the agent has legal authority to act for the principal. Since it need not be filed, a power of attorney will not be found in court files unless it has been requested as part of a legal dispute. On the other hand, you might find powers of attorney in the recorder's office. Some states, like Ohio, require that powers of attorney relating to the conveyance of an interest in real property be recorded and others, like North Carolina, require that durable powers of attorney be recorded in certain circumstances.
Requested in Discovery
The legal term discovery describes both the process of information exchange in a lawsuit and the information that is exchanged. Parties to a lawsuit have various discovery methods available to seek information from the other party, including depositions (recorded face-to-face interviews), interrogatories (written questions that must be answered under oath), requests for admissions (lists of facts that the other party must admit or deny) and requests for production (documents the other party must copy and produce). A party conducting discovery may ask oral or written questions about a power of attorney and also request its production if it is relevant to an issue in the action.
Relevance in Legal Actions
If a power of attorney is relevant to a lawsuit, a party may obtain a copy or even demand to see the original during discovery. If it is irrelevant to any contested issues, the court will not require that it be produced. The relevance of the document is immediately clear in any legal action between the principal and agent regarding transactions made under the power of attorney. Likewise, the court will order production if an action by the agent is challenged as abusive or beyond his authority by a third party.
- American Bar Association: Power of Attorney
- Consumer Financial Protection Bureau: What is a Power of Attorney (POA)?
- Minnesota Judicial Branch: "Discovery" Process in a Civil Action
- California Courts: Discovery
- North Carolina General Assembly: North Carolina General Statutes, Chapter 32A, Powers of Attorney
- Law Server: South Carolina Code 62-5-501
- LAWriter Ohio Laws and Rules: Ohio Revised Code, Chapter 1337, Power of Attorney
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.