Rav Dovid Josilowsky Question: Two people come to beis din. Reuven comes on behalf of…
Rav Dovid Josilowsky
Question: We know that there is a halachic concept of “shlichus”. How is this concept similar to the secular concept of “power-of-attorney” and how is it different? Specifically, how does it apply when someone who appoints a shliach becomes incapacitated or dies?
Answer: There is a machlokes between the Rambam and Tur regarding a case where someone sends a shliach to give a get on his behalf and then becomes incapacitated. Everyone agrees that the shliach cannot give the get; however, the Rambam says that the get is only posul m’derabanan, while the Tur says that it is posul m’dohraysa. The Acharonim explain that this machlokes is based on a fundamental disagreement about how to define the concept of shlichus. The Rambam learns that when someone appoints a shliach, he gives over the full power to him, and enables him to to act independently on behalf of the meshalayach; therefore, he could even give a get on behalf of an incapacitated person. The only problem is that the Rabbanan invalidated such a get. The Tur learns that the meshalayach only gives the shliach the power to do actions on his behalf that he knows reflect his will. He cannot act independently; therefore, he cannot give a get on behalf of an incapacitated person, and such a get is posul m’dohraysa.
The Ketzos Hachoshen says that thiis machlokes also applies if the meshalayach dies. According to him, the Rambam would hold that the shliach can theoretically give a get after the meshalayach dies, aside from the technical issue that they are no longer married upon the husband’s death. This would mean that, according to this opinion, shlichus is actually stronger than power-of-attorney, because power-of-attorney is no longer valid after the person who appointed the attorney dies.
In a case where a person becomes incapacitated, it depends on what kind of power-of-attorney was established. Some forms of power-of-attorney, which are commonly known as “durable” power-of-attorney, are still valid if the person becomes incapacitated, while others are not.
Regarding shluchim who are appointed for monetary matters, the Achiezer says even the Tur would agree that a person can appoint a shliach to do things on his behalf even if he is incapacitated because one is certainly able to grant a shliach the power to make monetary decisions on his behalf. Power-of-attorney would be the same in this regard, as someone can definitely grant an attorney the power to act on his behalf in financial matters. The Ketzos, however, disagrees with the Achiezer and says that the machlokes between the Rambam and Tur would apply in cases of monetary matters as well.