Law Wine &
by Albert Coke Roth, III, Esq.
Attorney and international wine judge Coke Roth blends personality with GLBT legal insight & wine recommendations
Albert Coke Roth, III is the Principal of the Roth*Coleman Law Office in Kennewick, WA and is licensed to practice law in Washington and Oregon, practicing law in the areas of Estate and Relationship Planning, Business and Business Succession Planning and matters of Real Estate. You can contact Coke at (509) 783-0220 or firstname.lastname@example.org , or visit www.rothcoleman.com . Coke is also an international wine judge, winery consultant, and a panelist for WinePress Northwest Magazine.
The Law of Agency is another medieval import from our British pals; appointing another to do stuff for you. If it sounds like employment, it should, because that's what it is. It started out being called "MasterServant" (still works that way interchangeably in households . . . ahem), however, the characters are contemporarily referred to as "Principal" and an "Agent" or "Attorney-in-Fact" (AIF). The Law of Agency controls the documents where a Principal appoints an AIF. "Powers of Attorney," and the powers the Principal conveys to the AIF are established by statute and by the Principal's choice. Of course, where there is work, there are duties. The Principal owes employer duties to an AIF, like compensation, reimbursement, defense for negligent and contractual acts done within the scope of the work, etc. Conversely, the AIF has duties of reasonable care, loyalty, obedience, etc. I strongly encourage you to see a lawyer as the vast majority of the Power of Attorney on the internet or through e-services are junk if used without explanation, so you need legal advice and the proper form to accomplish the task right. Powers of Attorney must be executed under free will (no duress, coercion, etc.), the Principal must have legal capacity (minimum 18 years old), and must have mental capacity, of which
there are several definitions. I prefer to analogize the principals used in Will capacity evaluations from a 1942 Washington case, Estate of Bottger, where the Principal must comprehend the nature and extent of the property over which the AIF will have control, understand that an appointment empowers another to work for the Principal, and the Principal must have a firm recollection of their immediate family. General Powers of Attorney are created out of convenience; allowing a person to assist the Principal while the Principal has mental capacity. Special Powers of Attorney are used for special jobs; typically appointing an AIF to sign documents for financing or real property conveyances when a Principal with mental capacity is not available. The estate planning Powers of Attorney are called Durable Powers of Attorney. These instruments allow the AIF to perform acts for the Principal when the Principal has, err, lost their marbles; these Powers of Attorney are not affected by the mental incapacity of the Principal. This varies the common law requirement of Principal capacity, and the payment for this variance is that the Power of Attorney statute requires the Principal to specifically list the powers the Principal intends to grant to the AIF. I prefer splitting the Durable Power of Attorney into "Health Care" and "Everything Else EXCEPT Health Care" for
| January 2009 | Q View Northwest - Spokane Edition | www.qviewnorthwest.com