Magisterial District 05-2-42 News: Judge Leah Williams Duncan Esq.

Taking up the cause for another person or entity is often seen as a commendable gesture. Speaking up for those who cannot speak for themselves or being a champion for the underserved should be applauded. However, in our court system, being a well-meaning non-attorney advocate or representative is not that simple. Depending on the court level, being a non-attorney advocate or representative can range from the requirement of legal documentation to being disallowed altogether.

Proceedings in the Magisterial District Courts are governed by 246 Pa Code rule 207 which provides that Individuals may be represented by themselves, by an attorney at law, or by a representative with personal knowledge of the subject matter of the litigation and written authorization from the individual to appear as the individual’s representative. Upon becoming a Magisterial District Judge (MDJ), I frustrated quite a few “representatives” by requiring the presentation of Administrative Office of PA Courts (AOPC) form 317 before any non-attorney could speak on behalf of someone else. This often occurred in Landlord/ Tenant cases where an employee appeared on behalf of a rental agency or in municipal ordinance actions where someone appeared on behalf of an elderly property owner. Despite my explanation that the form was required by law, I often received the response “I never had to do it before.” Thankfully, I find that most regular representatives now know to pick up the form in advance of the hearing date so as to not cause any delay. AOPC form 317 can be obtained in any Magisterial District Court office or online at pacourts.us/forms. It is not required to be notarized; however it must be properly signed by the litigant/party and by the representative. The signed form then becomes part of the case file and the non-attorney representative may participate but only in civil actions.

In some cases, such as traffic court, an “interested third party” may be permitted to appear for the person named on a citation. For example, when a citation is issued on a vehicle, the owner of the vehicle will be named but if someone else actually had use of the vehicle then that person may appear instead of the owner and either take responsibility or challenge the citation. This often happens with students who have use and control of a vehicle that is actually owned by their parents.

In other divisions of the court such as Civil, Family and Orphans’ Court, a representative may make certain filings and appearances on behalf of another person only with properly granted legal authority. In the Criminal Division, representation by a non-attorney is not permitted. When a person’s freedom and/or other important rights are at stake, the only options are a licensed attorney or to be self-represented.

When the need to act on someone else’s behalf goes beyond the court and extends to financial, business, medical, and other important matters a Power of Attorney (POA) may come into play. Simply put, a POA is a legal document that gives one person the power to act for another person. It is used in the event of a person’s temporary or permanent illness or disability, or when they can’t sign necessary documents for their own affairs. Some key points to remember regarding a POA are:

• A POA may be limited to decision making regarding specific issues such as medical treatment, legal matters or financial affairs or it can be general, covering all affairs.
• A POA need not be permanent. It can be granted for a limited period and/or revoked at any time.
• A POA does not survive the death of the grantor. In Pennsylvania, once a person dies, the POA terminates and either a will or the laws of succession come into play.
• A person who has been declared mentally incompetent or incapacitated cannot grant POA. A person who is concerned about their declining health and ability to function may execute a “durable” POA allowing the document to remain in effect if they become incapacitated.
• If a person is declared incompetent or incapacitated before executing a POA, then someone concerned with that person’s health and well-being may seek to be appointed as guardian. This status can only be granted by the court and often involves some level of investigation, proof of incapacity and notice to other interested parties. In some cases, co-guardians may be appointed if the courts deems it appropriate.

Giving someone the power to act on your behalf should not be taken lightly. POA and any legal authority should only be given to someone you know and trust fully. Accepting authorization to act on behalf of someone else should also not be taken lightly. A person holding POA or other legal authority may be held responsible for the misuse of any funds or assets over which they are granted control. This could include prosecution if the situation rises to the level of criminal activity.

This is not to scare or deter well-meaning representatives from acting on behalf of those in need. Paraphrasing Winston Churchill, It is important to remember that “with great power, comes great responsibility.” And as always, seeking legal advice from a qualified attorney is never a bad idea.