Can a power of attorney allow you to act &quot;pro se&quot; on behalf of the issuer? Anyone can represent themselves in a court of law, if he or she doesn't want, or can't afford, a lawyer. On the other hand, only lawyers who have passed the bar in a state are allowed to represent others. Suppose you have an aging parent (or other relative) that is certifiably "incompetent" but has given you the power of attorney. From the sound of it, this means that you would be able to represent this person "pro se" or through other means. Is this true? Or is it a case where "power of attorney" doesn't confer the right to act as a lawyer for someone who is incompetent, even though it sounds like it does (to a layman). Are there at least some forums, such as small claims court, where the "power of attorney" gives you the right to act as someone's "lawyer?"
For most civil matters the answer is "no". Small claims court is special since there are restrictions on using attorneys, and in that context, it depends on the rules. In Indiana, the answer in their manual is no Small Claims Rule 8 allows a person to appear at trial and, if he or she chooses, represent himself or herself and avoid the cost of hiring an attorney. However, a person is allowed to hire an attorney and have the attorney appear with him or her at the trial. A person who has power of attorney for another person may not represent that person in court. "Have the attorney appear with him or her at the trial" is pretty unclear, since it doesn't say whether the attorney can represent them. Rule 8(C)(1) states that "A natural person may appear pro se or by counsel in any small claims proceeding", which clarifies that they don't just mean "have at your side". In Minnesota, the answer is more emphatic "no": A power of attorney does not authorize a nonlawyer to file a claim, appear, or in any other way “represent” a natural person in conciliation court. As for allowing attorneys in small claims court, Attorneys are only allowed to represent parties in conciliation court with permission of the court (emphasis added). The situation in California is somewhat of a hybrid, but as I read it, it means that the incapacitated person is out of luck, which strikes me as surprising. They say Self-representation is usually required. There are, however, several exceptions to this general rule: If the court determines that a party is unable to properly present his or her claim or defense for any reason, the court may allow another individual to assist that party. The individual who helps you can only provide assistance—the individual’s participation in court cannot amount to legal representation, and the person can’t be an attorney. So this is most unlike Indiana is that you can't have an attorney, and all the person can do is "assist". So unless they just waive the rules, this means that if the individual is incapacitated, they cannot have recourse to small claims court.
What would be the best course of action now? It has been six months with no communication from him or his estate lawyer, and no will has been filed with the court. Since it's not entering probate, is there any guarantee that he has to faithfully execute the conditions of the will at all or notify any of the beneficiaries? Without probate, can he simply choose to not execute the will? A will has no effect or validity until it is admitted to probate. You can't do anything with a will outside a probate proceeding. Usually state law requires that a will that is in someone's possession be lodged with the court, whether or not they plan on opening up a probate estate, but this requirement is widely ignored. Unlike a will, a trust can be administered without court supervision, without being admitted to probate, although usually, the trust is required to file a notice of its existence with the court if it has become irrevocable (a requirement that is also widely ignored). The trustee of a trust has a fiduciary duty to administer the trust in accordance with its terms and to keep the beneficiaries of the trust reasonably informed about it. Again, sometimes the notice to the beneficiaries is overlooked. Also, it wouldn't be unusual for someone to inaccurately say that a will provided that a certain thing happen, when, in fact, that was a provision in a trust. People are sloppy in ordinary conversation about the distinctions between wills and trusts. If a trust was drafted to avoid probate, the will is probably just a "pour over will" which states that if there is any property that is not in the trust as her death that it is hereby transferred to the trust. Normally, a person would not have both a trust designed to avoid probate and a will with substantive provisions at the same time. If you suspect that you know who the trustee is, the first step would be to write a formal letter that you can prove was sent and received (e.g. via certified mail or FedEx), asking if there is a trust, and if there is one, if you are a beneficiary of that trust, and asking for the trust agreement (or at least the parts of it pertinent to you status as beneficiary). If the person that you suspect is trustee is a trustee, he has a legal duty to let you know these things (which doesn't mean that he necessarily will do so). If you fail to receive cooperation or a response after this initial inquiry, you may need to hire counsel to attempt to obtain this information through the courts.
Laws update, collectively, very frequently. Laws are embodied in statutes, regulations, and court rulings, statutes being the most stable of the three. In terms of what an individual lawyer would do, the most important is to focus on the relevant and ignore the irrelevant. If you mostly write wills and trusts, that defines a subset of issues that are important to you; if you are a tax attorney, that is another subset. If you ask a contract attorney about some highly speculative matter of constitutional law, the answer will most likely be &quot;That's outside my area of specialization&quot;. The concepts of &quot;subscribe&quot; and &quot;free&quot; are mostly antithetical. If you want the really good stuff, you can subscribe to Westlaw or Lexis Nexis. If you want the really free stuff (as generally seen here), the simplest solution is to use Google which may direct you to Findlaw, Justia, Cornell, Avvo or Law SE (unabashed plug). New is not necessarily better, and frankly, new statutes are the least informative, because legislatures often say things that are less than clear on the face of it, and will need to await either administrative creation of a regulation that spells out what the law means, or a court ruling that does the same thing – maybe 10 years after the law was passed.
You can give your friend limited power of attorney in respect to selling your car, if you trust your friend enough with managing this transaction. Basically this is just a legal form you sign telling anybody who questions that you give your friend the legal right to stand in your place (in legal matters) and act as if they were you. The limited part is important as you don't want to give unlimited power of attorney (not sure you even can without more involved work), but you need to spell out exactly what your friend can do, like sign your title, sign and deliver a bill of sale, and complete a transaction in your name. Your friend would be signing their name to the title and submitting it with the power of attorney paperwork. In California, the DMV has a specific form for exactly this. You should print out, sign, and mail that form to your friend.
When it comes to the obligation to tell the truth, there isn't all that much difference between a lawyer's obligations and those of a pro se litigant -- at least as far objective truth. But not every question has a single truthful answer. Professionalism rules impose some higher standards on lawyers in cases that are a bit murkier than just asking, &quot;Were you at the Capitol on January 6?&quot; In the United States, the analogous rule lays out some bright-line rules. Rule 3.3: Candor Toward the Tribunal (a) A lawyer shall not knowingly: make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Subsection (a)(1) gives a good example of where the duties of honesty diverge for lawyers and pro se parties. If a plaintiff tells the court honestly -- but mistakenly -- that he lost $1 million in profits, but later discovers that he only lost $100,000, his lawyer has a clear obligation to correct that statement for the court; the pro se plaintiff's obligation is not clear. Similarly, if a plaintiff tells the court that he is entitled to those lost profits if he can prove elements A, B, C, and D, but later learns that the Supreme Court has also imposed a requirement that he prove E, the lawyer has an obligation to notify the court of this development; the pro se plaintiff does not. On the &quot;overriding&quot; language: I don't read it as generally having any effect on a lawyer's duty to be honest to his client. Instead, it means that the lawyer's duty to the court overrides the lawyer's duty to the client. In either of the above hypotheticals, for example, the lawyer acted honestly and ethically in presenting his evidence and argument, even though his statements turned out to be false. Correcting the record on either point would reduce or possibly eliminate his client's likely recovery and be against his client's best interests. Once the lawyer discovers the error, he is therefore faced with a conflict of interest: he has a duty to act in his client's best interest, but he also has a duty of honesty to the court. Chapter 13 says that his duty to the court overrides his duty to his client.
First - do it all with an operating agreement in writing; always - no exceptions! Second - what you are describing in fairly simple for any competent lawyer to draft. The voting section of the operating agreement needs to include a provision stating something to the effect that until a Trigger Event occurs, Big Member will have 90% of the voting power of all membership interests; following the Trigger Event, Big Member and Little Member (assuming no other members join the LLC in the interim) will each own 50% of the voting power. The operating agreement (including this provision) is executed at the inception of the LLC, and will be self-executing, that is - when the trigger Event occurs, voting power should automatically shift without the need for any additional action. Have your lawyer make sure there's no hitch in the applicable state LLC law; that equity interests don't shift on the Trigger Event (that would cause tax problems) and, of course, don't forget to (very clearly) define the Trigger Event....
As a preface, while the best course of action isn't always clear and the reality of implementing some solution is often rocky, the bipolar diagnosis situation you describe is probably the single most common situation in which legal arrangements must be made for an adult child, and is almost as common as the need for children to make legal arrangements for the care of their declining parents. You aren't the only one going through situations like these. Probably 0.5%-2% of people in any given area experience bipolar, usually starting in adolescence or young adulthood, and difficulties managing it of the kind that you describe are the rule and not the exception. Also, just ignoring the problems you describe is a very bad idea. Premature death either from suicide or bad judgment related to the bipolar diagnosis is all too common in these situations. It is serious business, not something that should be thought of as bad character, or futile to do anything about, or blameworthy. It just is, and if someone doesn't do something when the plan gets off course, serious consequences often follow. There are really several intertwined issues present here. Realistically, given the nature of the concerns expressed, a limited guardianship may be necessary to accomplish the goals expressed. What Are Medical Powers Of Attorney? A healthcare or medical power of attorney gives the person who holds it (who is called an "agent" or "proxy") the authority to make medical decisions for someone called the principal (i.e. John Smith) when the principal lacks the capacity to give informed consent at that very moment to do so. This is because a power of attorney is an inherently revocable document expressing the wishes of the person writing it. You generally can't bind yourself in the future without court approval or a contractual relationship with a third party which a power of attorney is not. It isn't uncommon for medical personnel to decide on the spot when to and not to listen to someone with a medical power of attorney based upon how mentally competent the patient seems at the time on a decision-by-decision basis. For example, they might defer to the medical power of attorney agent when the patient is unconscious or heavily drugged, and listen to the patient when the patient is conscious, not drugged, and not acting erratically. Parents, incidentally, do not automatically have this authority, nor do spouses. A medical POA is a document that allows the agent to say "yes" when the patient (i.e. John Smith) cannot. Another name for a document that is very similar and sometimes used is a "health care proxy." It would typically cost a few hundred dollars to $1,000 to have a medical power of attorney drawn up after discussing the situation and the principal's needs in a meeting with a lawyer and might take an initial meeting and then a second one at which the document is signed after it is prepared following the initial meeting. Other lawyers might manage this in a single meeting and draft it while you wait. If all you need is a power of attorney, don't be penny wise and pound foolish by doing it yourself, unless the form is provided to you by the health care provider you will spend most of your time dealing with and they prefer their own form. Otherwise, the likelihood that you will have to pay more to a lawyer later cleaning up your own mistakes probably exceeds any money that you will save. Other Kinds Of Authorizations Many medical providers will allow someone to act on behalf of a patient in matters other than matters that call for the kind of medical decision that would normally require the informed consent of the patient, even when the patient is not manifestly incapable of making medical decisions at that very moment. This could simply be a note in the file that the patient has given that person authority to do so, it could be a written authorization to access HIPAA protected personal health information of the patient, and it could be a variety of other things (e.g., authority to make financial arrangements). Some of this is often incorporated in the same document as a medical POA. Picking Up Controlled Substances A Medical POA may, or may not, necessarily be sufficient to authorize someone to pick up a controlled substance on behalf of a patient if the patient is physically able to do so, without the presence of the patient. I don't know what the true rule of law under the controlled substances acts and pharmacy regulation is, but I do know that practice in real life varies quite a bit. The best practical solution to the issue of picking up controlled substances would be to ask the usual pharmacist what they require and to comply. (A legal guardian would generally have the power to pick up controlled substances for a ward.) Guardianships and Limited Guardianships What Is a Guardianship? A guardian of the person is someone appointed by a court who has the authority to make medical decisions and other personal life decisions for their ward (i.e. John Smith), even contrary to their apparent stated wishes. A guardian has the authority to say "yes" and also to say "no" to the expressed wishes of the ward, overruling the ward. A guardianship of an adult can be general, or can be limited on a customized basis. A guardian must be appointed by a court with jurisdiction over these cases, usually in the county where the ward resides. But, a guardianship can be requested by the ward as opposed to contested. Realistically, a court would be unlikely to grant a full guardianship or a contested guardianship in these circumstances, but might grant a limited guardianship with the consent of the ward in these circumstances. The parents and possibly any siblings, would have a right to notice of the proceedings and to object or to seek to be appointed instead. What Process Is Involved In Having a Guardian Appointed? This would realistically be a proceeding that should ideally involve a specialist lawyer (with experience in mental health or elder law and guardianships) and at least one medical professional's statement (probably a treating psychiatrist or psychologist). There would also probably be a court investigator or guardian ad litem appointed at the ward's expense, to confirm that the facts represented in the petition to have a guardian appointed really reflect the ward's intent. Usually, a proposed guardian selected by the adult ward during a lucid interval would have priority for appointment. The medical professional and lawyer should be able to provide good suggestions regarding what the scope of the limited guardianship needs to be, although don't ignore or fail to give full credit to your own layperson's practical understanding of the situation either. The guardian would have to provide information to the court in connection with the petition showing eligibility to serve (e.g. criminal record check, credit check, CV, nomination by ward). Often the guardian would have to demonstrate good intentions towards the ward in some way, especially if the guardian is a third party and not someone who serves as a guardian as a livelihood. Some courts would require the guardian to have insurance for liability in connection with the task or a surety bond up to some dollar amount. The final decision would usually be made in an in-person hearing at which the ward, the proposed guardian, the proposed guardian's lawyer, the medical professional, the guardian ad litem or investigator, the judge, a court clerk, a court reporter, and any family members who chose to appear (with their lawyers, if any), were present. If the guardianship was granted, perhaps with modifications requested by the judge to the terms of the guardianship, then the Court would issue what are called "Letters" that formally appoint the guardian to the post. Once appointed, the guardian would have to file periodic status reports with the court and would also be subject to the court's jurisdiction in the event of any future dispute regarding the guardianship, or any allegations of misconduct by the guardian, or any circumstance that requires court approval such as a change in the terms of the guardianship or in the person serving as guardian. The procedural details I am describing are approximate and aren't necessarily up-to-the minute correct, and might vary somewhat even from court to court within California under local rules and customs of practice; but they give you a gist of what the process would be like if it is working properly and with best practices. Typically, this might cost $3,000 to $10,000 all in for an uncontested proceeding, and many times that much in the event of a contested attempt to have a guardian appointed. Health Insurance Eligibility I'll defer to someone else's answer regarding health insurance eligibility, as I don't have time to look into that at the moment. My instinct is that this wouldn't be a problem in any case except a guardianship and probably wouldn't be a problem even in a case with a third party guardian, but I can't confirm that without doing research.
Law SE is not for direct legal advice. You're in the middle of a contract dispute that has turned acrimonious and need to find legal help. Google for free or low cost legal aid in your area. If this "point person" has mentioned a lawyer or made legal threats, you do need legal help.