{"id":2288,"date":"2018-04-08T13:35:32","date_gmt":"2018-04-08T21:35:32","guid":{"rendered":"http:\/\/trainingpips.com\/?page_id=2288"},"modified":"2019-04-18T03:11:44","modified_gmt":"2019-04-18T11:11:44","slug":"ps-102-chapter-12-article-1-power-of-attorney-or-guardianship-scott-v-goldman","status":"publish","type":"page","link":"https:\/\/www.trainingpips.com\/index.php\/ps-102-a-course-outline\/ps-102-understanding-case-summaries\/ps-102-chapter-12-miscellaneous-case-law\/ps-102-chapter-12-article-1-power-of-attorney-or-guardianship-scott-v-goldman\/","title":{"rendered":"PS 102 – Chapter 12 – Article 1 – Power of Attorney or Guardianship – Scott v Goldman"},"content":{"rendered":"

Unknown if Published
\n82 Wn. App. 1, SCOTT v. GOLDMAN
\n[No. 18540-7-II. Division Two. March 29, 1996.]<\/strong><\/span><\/p>\n

Facts<\/strong><\/span><\/p>\n

The plaintiff sought damages<\/a> for misappropriation<\/a> of funds and involuntary servitude. Process was served on the defendant<\/a>’s son who held a general power of attorney for the defendant<\/a>. The defendant<\/a>’s son did not enter an appearance<\/a> on the defendant<\/a>’s behalf.<\/span><\/p>\n

On the same day that Scott filed this action<\/a> for misappropriation<\/a> of funds and involuntary servitude against Goldman, he sent a process server to serve her at her Roy, Washington, residence. The process server was unsuccessful as he could not find Goldman’s proper address.<\/span><\/p>\n

Scott’s attorney later learned that Goldman might be residing with her son and daughter-in-law<\/a>, Ernest and Gayle Brock. The process server went to the Brocks’ home in Puyallup. Upon learning that Goldman had granted Ernest Brock a general power of attorney, the process server served Brock on behalf of his mother.<\/span><\/p>\n

On the advice of Goldman’s attorney, Brock did not enter an appearance<\/a> on Goldman’s behalf. Scott then moved for a default judgment<\/a>. The affidavit<\/a> of service accompanying the motion<\/a> stated that Goldman had received valid substitute service at her son’s residence in Puyallup. The trial court entered a default judgment<\/a> against Goldman on September 21, 1989.<\/span><\/p>\n

On May<\/a> 31, 1994, Goldman moved to have the judgment<\/a> set aside. The trial court granted the motion<\/a> by letter opinion, finding<\/a> that Scott had failed to establish in personam jurisdiction<\/a> over Goldman. Scott moved for reconsideration.<\/span><\/p>\n

The trial court signed an order vacating the default judgment<\/a> and denying Scott’s motion<\/a> for reconsideration on August 19, 1994.<\/span><\/p>\n

On appeal<\/a>, Scott claims that RCW 11.94.010<\/a> and .050<\/a> implicitly authorize the holder of a general power of attorney to accept service on behalf of the principal and, in the alternative, that his service was sufficient to obtain jurisdiction<\/a> over Goldman because it was calculated to give Goldman, her attorney-in-fact<\/a>, and her attorney-at-law<\/a> actual notice<\/a>.<\/span><\/p>\n

Specific Issues<\/strong><\/span><\/p>\n

    \n
  1. Does a trial court have jurisdiction<\/a> over a person<\/a> improperly served with process? No<\/strong><\/span><\/li>\n
  2. Is a judgment<\/a> entered against a party<\/a> valid if service of process was improperly made? No<\/strong><\/span><\/li>\n
  3. Must the contents of a power of attorney be strictly construed? Yes<\/strong><\/span><\/li>\n
  4. Is the agent<\/a> holding a power of attorney limited to the express terms of the power of attorney? Yes<\/strong><\/span><\/li>\n
  5. Must a power of attorney specifically give the agent<\/a> the power to receive process for the grantor<\/a> in order for the agent<\/a> to do so? Yes<\/strong><\/span><\/li>\n
  6. Is a power of attorney equivalent to a guardianship? No<\/strong><\/span><\/li>\n<\/ol>\n

    Reasoning<\/strong><\/span>
    \nA power of attorney is a written instrument by which one     person<\/a>, as principal, appoints another as agent<\/a> and confers on the agent<\/a> authority to act in the place and stead of the principal for the purposes set forth in the instrument. Powers of attorney are strictly construed. Accordingly, the instrument will be held to grant only those powers which are specified, and the agent<\/a> may<\/a> neither go beyond nor deviate from the express provisions.<\/span><\/p>\n

    Even when a power of attorney professes to extend all the principal’s authority to the attorney-in-fact<\/a>, that authority is not without limits. For example, the attorney-in-fact<\/a> may<\/a> not alter the terms of the principal’s testamentary devices unless the document explicitly grants this authority. RCW 11.94.050<\/a>.<\/span><\/p>\n

    The general power of attorney here granted Brock authority to administer Goldman’s finances and property interests and take certain clearly delineated legal<\/a> actions to forward these interests. Those actions do not include acceptance of service. Nor is the power of attorney unlimited in scope. Thus, the court concluded that Brock lacked authority to accept service on behalf of his mother.<\/span><\/p>\n

    A guardian and an attorney-in-fact<\/a> are two distinct legal<\/a> entities, controlled and defined in separate and distinct statutory schemes. Compare RC<\/a><\/span>W<\/span> <\/span>11.94<\/span> (Power of Attorney) and RCW 11.88<\/a> (Guardianship). A guardian is appointed by the superior court and must abide<\/a> by the laws and perform the duties set forth in RCW 11.88<\/a> and RCW 11.92<\/a>. An attorney-in-fact<\/a>, on the other hand, is appointed by the principal and, with few exceptions, his authority is limited to the specific powers set forth in the power of attorney. As the distinction between a guardian and an attorney-in-fact<\/a> is unambiguous, the court would not interpret “guardian” to include an entity<\/a> beyond the scope of its statutory definition.<\/span><\/p>\n

    C4PSE Comment<\/strong><\/span><\/p>\n

    The distinction between a power of attorney and a guardianship is of vital importance to a professional process server. As seen in this case<\/a>, a lack of understanding on the part of the process server resulted in a judgment<\/a> being vacated. It is not known if the process server was later held liable<\/a> for the monetary amount claimed by the plaintiff.<\/span><\/p>\n

    The following procedure should be followed in order to make a valid service on a person<\/a> (the principal) by presenting the documents to another person<\/a> (the agent<\/a>) who holds a power of attorney from the principal:<\/span><\/p>\n

      \n
    1. At the time of service the process server should request a copy of the power of attorney from the agent<\/a>. If a copy is not provided the service should not be made.<\/span><\/li>\n
    2. The process server should examine the power of attorney carefully to make sure it explicitly vests in the agent<\/a> the authority to receive legal<\/a> process on behalf of the principal. If this is not the case<\/a> then the service should not be made.<\/span><\/li>\n
    3. The process server should provide the client with a copy of the power of attorney and a copy should be kept by the process server.<\/span><\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"

      Unknown if Published 82 Wn. App. 1, SCOTT v. GOLDMAN [No. 18540-7-II. Division Two. March 29, 1996.] Facts The plaintiff sought damages<\/a> for misappropriation<\/a> of funds and involuntary servitude. Process was served on the defendant<\/a>’s son who held a general power of attorney for the defendant<\/a>. The defendant<\/a>’s son did not enter an appearance<\/a> on […]<\/p>\n","protected":false},"author":3,"featured_media":0,"parent":2286,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-2288","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2288","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/comments?post=2288"}],"version-history":[{"count":0,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2288\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2286"}],"wp:attachment":[{"href":"https:\/\/www.trainingpips.com\/index.php\/wp-json\/wp\/v2\/media?parent=2288"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}