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Does a Power-of-Attorney Have The Same Power as a Harsha’ah? 

Rav Dovid Josilowsky

Question: Two people come to beis din. Reuven comes on behalf of the claimant, Levi, for whom he has a legal power-of-attorney. Levi himself is incapacitated and is unable to come to bais din himself. Can the defendant, Shimon, say “lav baal devarim didi at”, you are not my litigant, and refuse to deal with Reuven? 

AnswerThe question is wheter a legal power-of-attorney is considered a full “giving over” of power, that would work like a harsha’ah

For example, a durable power-of-attorney  is effectiveto sell a house on someone’s behalf even after he becomes incapacitated because the individual gave over the right to make his monetary decisions to the attorney; however, it does not work if the meshalayach dies, as power-of-attorney expires when a person passes away. A harsha’ah, on the other hand, is valid even after the meshalayach dies, which takes away the defendant’s ability to say “lav baal devarim didi at.” In a regular case of power-of-attorney, the defendant would technically be able to refuse to deal with the representative by claiming that perhaps the meshalayach has died. 

Practically, if a party does not make this claim in bais din, the bais din will not make it for him because the shlichus technically should be good enough to work and we do not suspect that the meshalayach died. Thus, a party may be able to say “lav baal devarim didi at” to someone who has power-of-attorney, but bais din will not say this for him and they will allow the case to continue.

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