April 19, 2017
Authored by: Luke Lantta
Powers of attorney can be matters of convenience or matters of necessity – the principal either doesn’t want to do something or the principal can’t do something. For the agents under a power of attorney, allowing yourself to be named as an agent may be nothing more than a favor to friend or an expectation as a son or daughter. When agreeing to be an agent, it may be worth a pause to consider the geographic scope of that responsibility. Friends and kids move away, but – like a daughter acting as an agent under her father’s power of attorney in Sullivan v. Bunnell – they may find themselves getting hauled into court across the country because they served as an agent under a power of attorney.
Here, in the midst of his divorce, the father moved from Georgia to California where his daughter resided. The father hired Georgia counsel to represent him in settlement negotiations and the daughter assisted him with e-mail and telephone conversations with Georgia counsel. The father executed a power of attorney appointing his daughter as agent and, sometime thereafter, the father was put under care and supervision for dementia. Several years later, the daughter, acting as agent, sent a letter through counsel informing the ex-wife that certain payments agreed to under the divorce settlement agreement would end. The ex-wife demanded compliance with the terms of the divorce settlement agreement and then filed a contempt motion in Georgia. The contempt action named the daughter individually and as a fiduciary for the father. The daughter sought to dismiss the Georgia action on the grounds that the court lacked personal jurisdiction over her as a California resident. The trial court agreed, but the Georgia Court of Appeals found that personal jurisdiction could be exercised over the non-resident agent acting under a power of attorney.
What led to the Georgia Court of Appeals determining that the courts of Georgia could properly assert personal jurisdiction over a non-resident individual who acted under a power of attorney? The appellate court started by rejecting the ex-wife’s argument that the daughter was subject to personal jurisdiction in Georgia because of the father’s contempt of the divorce decree. Even if the daughter was involved in the negotiations that led to the divorce decree, those actions do not extend to the father’s contempt of the final decree. The appellate court then focused on the daughter’s actions within Georgia as agent: hiring counsel to indicate that the father would stop making the retirement payments and communicating with the ex-wife about the father’s noncompliance with the payments. Thus, the daughter was alleged to have been the primary participant in the activities at issue – nonpayment of the retirement payments.
In reaching its decision – which may be the first time Georgia has directly faced the question of personal jurisdiction over a non-resident agent acting under a power of attorney – the appellate court noted that at least two other states allow for such exercise of personal jurisdiction: New York and Florida. Looking to New York and Florida for guidance on Georgia power of attorney issues is curious since each state has unique laws governing their state’s powers of attorney. Georgia, however, may be headed toward joining a growing number of states that have adopted the Uniform Power of Attorney Act. Georgia’s General Assembly passed the UPOAA in 2017 and now it awaits the Governor’s signature.