Legal Question in Family Law in California

A power of attorney gives others the right to act on your behalf. But the term "attorney" is a misnomer. It does not give her the authority to represent you in court, only an attorney licensed by the California State Bar can do that.

Actually "attorney" is not a misnomer at all, the meaning of the term being a personal representative or agent who stands in your place. It comes from an old feudal term for a person who steps into the place of a lord or master and to whom vassals were obligated to give their loyalty and service just as to the original lord. The term is attorn, and the person who all others were obligated to treat the same as the original lord was an "attornee." Back then the ownership of land, the power to make binding agreements and conduct business, and the power to make and enforce local law all came from being the landholding lord. As those powers diffused, the language evolved to identify what kind of attorney you were talking about. So we had "attornee's" for landlords who take over from previous landlords, "attorney at law" for legal representatives, and "attorney in fact" for those who hold the power to act on others' behalf in business dealings and financial affairs under a "power of attorney." All those terms are still in use for those purposes, but the distinctions are no longer commonly known and in everyday speech "attorney" is incorrectly used as if it were identical to "lawyer." Mr. Roach assumes that you are asking whether your spouse can be your attorney at law under a durable power of attorney. If that is what you mean, his answer is correct. We now require attorneys at law to be licensed, and a power of attorney would not confer the necessary qualifications. If, however, you are asking whether you can designate your spouse to act in your place and on your behalf in handling and making decisions regarding your legal case, then you absolutely could confer that authority to be your attorney in fact with a durable power of attorney. Powers of attorney may also be limited or general, so you could grant authority to act for you in hanlding the case, but not otherwise. One last thing I should mention. I am also not sure if you are clear on what a durable power of attorney is, as opposed to a regular one. A power of attorney being the power to act in the place of another, only confers the power to do what the person could do themselves. So if a person is incapacitated, physically or mentally, the attorney in fact is equally incapacitated. A durable power of attorney circumvents that legal technicality by including technical language that keeps the power active. This is why durable powers of attorney are used for granting limited powers to make healthcare decisions. Similarly "springing" durable powers of attorney grant no authority UNTIL the grantor is incapacitated, allowing someone to manage their affairs while they are incapacitated.