Pond, 071413 INAGO, AGO 2013-4

• Case Date: July 14, 2013
• Court: Indiana

The Honorable Phyllis Pond AGO 2013-4 Official Opinion No. 2013-4 State of Indiana Office of the Attorney General July 14, 2013          The Honorable Phyllis Pond          Indiana House of Representatives          200 W. Washington St.          Indianapolis, IN 46204          RE: Indiana’s Power of Attorney Statute (Ind. Code § 30-5-5 11)          Dear Representative Pond:          You requested a legal opinion on the following issue:

Does the appointment by a principal, pursuant to Indiana Code § 30-5-5-11, of an attorney-in-fact with general authority with respect to claim and litigation authorize the attorney-in-fact to appear in court for the principal, as if the principal were appearing pro se, or would the attorney-in-fact who appears for the principal be engaging in the unauthorized practice of law?

         The situation described in your request involves an individual who lives out of state and has appointed her son as attorney-in-fact to handle legal matters related to property she owns in Indiana.          BRIEF ANSWER          An attorney-in-fact may conduct litigation on behalf of the principal, but he or she may not do so pro se. While an individual may appear in court on his or her own behalf, only persons admitted to practice law may appear on behalf of others. A power of attorney does not allow an attorney-in-fact to represent the principal in court, unless the attorney-in-fact is admitted to practice law.          ANALYSIS          Indiana Code Art. 30-5 outlines the powers, duties, liabilities, and related provisions that apply to powers of attorney created after June 30, 1991.1 “Power of attorney” is defined in Ind. Code § 50-5-2-7 as:

a writing or other record that grants authority to an attorney in fact or agent to act in place of a principal, whether the term “power of attorney’ is used. The term refers to all types of powers of attorney, including durable powers of attorney, except for the following:

(1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a credit in connection with a credit transaction.

(2) A proxy or other delegation to exercise voting rights or management rights with respect to an entity.

(3) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose.

Ind. Code § 30-5-5-11 allows a principal to authorize an attorney-in-fact to sue on behalf of the principal and to engage in other activities to assert and defend the principal’s legal interests. That section authorizes the attorney-in-fact to employ attorneys or other experts as needed, but it is silent as to whether the attorney-in-fact may appear pro se on behalf of the principal. The full text...