By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Power of Attorney Law Firm

Getting divorced in New Jersey is easy, sometimes; but not always. Recently, a case was decided in the Ocean County Superior Court which presented a novel question about whether a party to a divorce action could appear and testify through a designated power of attorney (POA). The court held that a POA could not initiate or prosecute a divorce proceeding on behalf of a competent but elderly principal.


Plaintiff and defendant were eighty and eighty-four years of age, respectively. They have been married for thirty-five years. It is a second marriage for each. The parties have no children together, but one (1) party has an adult daughter from a prior marriage.

Several years ago, the defendant husband executed a POA appointing his daughter as his “attorney-in-fact” over his affairs. He authorized her to conduct many financial actions on his behalf. Under the terms of the POA, defendant also granted her authority “to institute, prosecute and defend any actions or proceedings brought in any court.”

Less than three months later, the daughter, now POA, retained counsel and filed a complaint for divorce seeking on behalf of her father equitable distribution of assets acquired during the parties’ marriage. The wife in turn retained counsel, who filed an answer and counterclaim for divorce along with a certification required under Family Law Court Rules. The husband did not sign the certification page personally, likely because of age and infirmity; instead, the certification was signed by his newly appointed POA, his daughter.

Plaintiff’s counsel objected to the POA signing court papers and appearing on behalf of her father in the divorce litigation, emphasizing that defendant had never been adjudicated incompetent or otherwise unable to handle his own affairs. Plaintiff further contended that even if the use of a POA was deemed permissible in divorce court, there was a potential conflict of interest with the daughter serving as defendant’s POA since she had a personal stake and interest in the outcome of the litigation as defendant’s adult child and potential heir to marital property otherwise subject to equitable distribution.

Conversely, defendant’s counsel contended that there was nothing inappropriate about defendant’s use of the POA in the divorce litigation, in that (a) there was no court rule expressly prohibiting same, and (b) a person has a legal right to appoint a POA to handle any and all legal affairs on his or her behalf.

Counsel for both parties stipulated that their respective legal research uncovered no prior New Jersey case law specifically addressing the issue of whether a matrimonial party could, or could not, appoint a third person as POA to appear on a principal’s behalf in divorce litigation.


The legal analysis started off with the correct statement of the law, namely a competent person has the right to appoint another person to act on his or her behalf as an “attorney-in fact” under a written POA. This right is embodied in New Jersey’s “Revised Durable Power of Attorney Act”, N.J.S.A. 46:2B-8.1. The POA is a written document signed by a person known as the “principal,” authorizing another individual, known as the “attorney-in-fact” to “perform specified acts on behalf of the principal as the principal’s agent.” N.J.S.A. 46:2B-8.2(a).1 Specific acts may include conducting the legal affairs on behalf of the principal, including but not limited to, retaining and communicating with a lawyer, and authorizing a lawyer to take legal action for the principal’s benefit.

As regards a person involved in a contested divorce proceeding, however, the statute does not expressly authorize one to delegate such duty to a third person. To the contrary, the court found that a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without consent of the other party or court order.

In matrimonial and family court litigation, the fact-finding process is heavily dependent upon the testimony of the parties themselves, and involves a focus on many personal and private issues, including dealings and communications between spouses within the family structure. During the course of a case, a participating party cannot be permitted to sidestep his or her testimonial obligations by simply appointing another person as his/her POA to testify on his or her behalf. Such a process might give the POA status on matters he/she may have little or no direct personal knowledge of the information at the heart of the case.

Such power might potentially lead to serious misuse by parties who seeks to employ such a strategy for inappropriate and improper purposes that are obstructive to the fact finding process.

In divorce cases which cannot settle, there will be a trial and, in all likelihood, the need for courtroom testimony by each litigant followed by the opportunity for the other party to ask cross-examination questions.

If the court permitted a POA to testify in place of a party based upon information purportedly supplied by the principal, there is a clear risk that such information will be incomplete or unreliable. A witness generally may not testify on the issue unless the witness has personal knowledge of the matter. This is called the hearsay rule and is generally inadmissible.

There may be circumstances when a party to a divorce action is mentally or physically unable to testify due to incompetency or other similar reasons. In such instances, the judicial process is flexible enough to accommodate fact-sensitive situations when reasonably necessary. The court can permit adult children to file a divorce complaint and pursue divorce litigation on behalf of their mother against their stepfather when (a) the mother has been previously declared incompetent following a judicial proceeding, and (b) the mother’s adult children, and not her husband, has been previously appointed as the mother’s legal guardian in the surrogate proceedings. The court under those circumstances can logically support giving a court-appointed guardian standing to file a complaint for divorce and/or appear for an incompetent party in a divorce proceeding.

There are cases where the evidence reflects that a party has significant mental health challenges which create a hardship for the party to fully grasp and understand the court proceedings and participate in a meaningful way. When the evidence reflects that such circumstances exist, the court may appoint a “guardian ad litem” to assist the party and support his or her best interests in the litigation. Pursuant to Rule 4:26(b), the court may appoint a guardian ad litem (GAL) for an alleged mentally incapacitated person.

In such a case, the proposed GAL must either have no personal interest in the case or, if there is such interest, he or she must disclose that interest so that the court can make a determination whether to approve or not approve the proposed appointment.

In this case, because there was no evidence supplied regarding any illness, injury, or other restrictive forces which prohibited the defendant from personally participating in these proceedings and because the POA was executed by the defendant only months ago, the court disqualified the POA from representing the plaintiff.

To discuss the adequacy of your Power of Attorney or Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at Please ask us about our video conferencing consultations if you are unable to come to our office.