Power of Attorney Defined
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POWER OF ATTORNEY

A power of attorney is a document that allows one person to appoint another person to act as their agent to perform specified acts or to handle their affairs. The person to whom a power of attorney is given is referred to as an "attorney-in-fact" or "agent."

Full Power of Attorney. If the power of attorney conveys broad general powers to an agent, it is known as a "general" or "full power of attorney". While the specific power of attorney ends when the agent's task is completed, a general power of attorney comes to an end when the principal is dead or when the principal cancels it by issuing a notice to his agent.

Specific Power of Attorney. If the power entrusted is for a specific purpose or task, it is known as a specific or special or limited power of attorney. Examples are power of attorney for (i) financial matters, (ii) healthcare decisions, (iii) probate, etc. Each is granted for a specific purpose and limited to the matters described in the document. A limited power of attorney for voting in an HOA election is specifically addressed by the Davis-Stirling Act. The holder of that particular power of attorney (election proxy) must be a member of the association if the authorizing document is to have any force and effect. (Civ. Code §5130(a)(1).) Moreover, the election proxy must have a specific format to be effective.

General Power of Attorney for Elections. A nonmember with a general or full power of attorney cannot vote nor can he/she act as a proxyholder. The Davis-Stirling Act states:

“Proxy" means a written authorization signed by a member or the authorized representative of the member that gives another member or members the power to vote on behalf of that member. (Civ. Code 5130(a)(1), emphasis added.)

An authorized representative can be someone who holds a power of attorney for a member (or a court appointed conservator, executor, administrator, etc.). The language of the statue makes the legislative intent clear. The first clause allow "a member or the authorized representative of the member" to give the proxy. The second clause allow a "member or members" to be given "the power to vote on behalf of that member" ("that member" being the proxy giver). The legislature might have included the "authorized representative" language in the second clause, but it did not not. So, while the proxy giver may also be a representative of a member, the proxyholder may not. 

This makes sense. Where a member might be unable to cast a ballot or sign a proxy for health reasons or otherwise, an authorized representative can sign for the member. But the proxyholder receiving the right to vote must always be an owner who is in the best position to make decisions regarding association matters.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

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