Bob Ferguson
Other LanguagesAGLO 1972 No. 73 -
Attorney General Slade Gorton
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September 11, 1972
Honorable Robert S. O'Brien
State Treasurer
Legislative Building
Olympia, Washington 98504
Cite as: AGLO 1972 No. 73 (not official)
Dear Sir:
By letter previously acknowledged you have requested an opinion of this office on certain questions regarding the use of powers of attorney in connection with applications for Viet Nam veterans' bonuses under chapter 154, Laws of 1972, 1st Ex. Sess. We have paraphrased your questions as follows:
(1) May a person holding a general or appropriately special power of attorney executed by a person qualified for a bonus under chapter 154, supra, make application for and receive such a bonus "on behalf of this person"?
(2) Assuming an affirmative answer to question (1), is that answer applicable in a case where the person who has executed the power of attorney is known to be a prisoner of war or missing in action?
We answer both questions in the affirmative for the reasons hereinafter set forth.
ANALYSIS
Chapter 154, Laws of 1972, 1st Ex. Sess., is, in essence, a legislative authorization to pay to each eligible veteran of the Viet Nam conflict a bonus of $250, in further "compensation" for military services rendered. The right to receive this compensation and the terms of eligibility therefor are spelled out in § 2 (1) as follows:
"(1) There shall be paid to each person who has been on active federal service as a member of the armed military or naval forces of the United States between a period commencing August 5, 1964, and ending on such date as shall thereafter be determined by presidential proclamation or concurrent resolution of the congress terminating the conflict involving United States forces battling in South Viet Nam, or [[Orig. Op. Page 2]] in the case of a reduction in hostilities, on a date determined by proclamation of the governor, and who for a period of one year immediately prior to the date of his entry into such service, was a bona fide citizen or resident of the state of Washington, and received the Viet Nam Service Medal, the sum of two hundred and fifty dollars for service between said dates: . . ."
Question (1):
You have first asked whether the foregoing right may be enforced by a person other than an eligible veteran who, nevertheless, holds either a general or appropriately special power of attorney to act in the subject veteran's stead.
Loosely speaking, a power of attorney is a written instrument which makes the holder thereof "the alter ego" of the person granting the power for purposes specified therein. In general, this type of instrument has been looked upon with approval by the courts, including our own state supreme court. In Arcweld Manufacturing Co. v. Burney, 12 Wn.2d 212, 221, 222, 121 P.2d 350 (1942), the court synopsized the common-law rules regarding powers of attorney as follows:
"By 'power of attorney' is commonly meant an instrument in writing by which one person, as principal, appoints another as his agent and confers upon such agent the authority to act in the place and stead of the principal for the avowed purpose, or purposes, set forth in the instrument. Subject only to certain exceptions shortly to be noted, the principal may revoke the power of attorney at any time, either with or without reason. As stated in 1 Mechem, Agency (2d ed. 1914), 401, § 563:
"'It is the general rule of law, therefore, that the authority of the agent may be revoked by the principal at his will at any time, and with or without good reason therefor. Authority of this nature is often termed a bare or naked power; and it is but to restate the general rule in a different form to say, as it is so often asserted, that a bare power is revocable at the will of the principal at any time.'"
A host of cases pronouncing that rule may be found in 2 C.J. 528, Agency, § 151, n. 30, and in 2 C.J.S. 1153, Agency, § 73, n. 52. See, also, 21 R.C.L. 886, Principal and Agent, § 59; 2 Am.Jur. 39, Agency, § 38.
[[Orig. Op. Page 3]] "To this rule, however, there are two universally recognized exceptions: (1) Where the authority or power is coupled with an interest, and (2) where the authority is given as part of a security, or is necessary to effectuate such a security. In either of such cases the power is irrevocable."
"A 'power coupled with an interest' is a power of authority to do an act, accompanied by or connected with an interest in the subject or thing itself upon which the power is to be exercised, the power and interest being united in the same person. Hunt v. Rousmanier's Administrators, 8 Wheat. (21 U.S.) 174, 5 L.Ed. 589."
Subject to certain statutory restrictions which are applicable in cases where a conveyance of real property is to be effected through an agent holding a power of attorney (see, RCW 65.08.060), there are no definitive procedural requirements ‑ such as recordation or acknowledgment ‑ which are determinative of the validity of this type of instrument in this state. However, of course, (as indicated by the above excerpt from Arcweld, supra) authority of the holder of a power of attorney is limited to that specified within the instrument. Thus, a "general" power of attorney is one which allows the holder thereof to do any and all acts which the principal might do, subject to the implied condition that these acts are done in behalf of the principal. Moon v. Phipps, 67 Wn.2d 157 (1966). On the other hand, where a power of attorney is limited to the performance of specific acts in behalf of the principal, the authority granted by the principal to do the act in question (here, file for a Viet Nam veteran's bonus) must clearly appear from the instrument. If there is any doubt, the burden is on the individual asserting the existence of the agency to demonstrate the extent of his authority. Moss v. Vadman, 77 Wn.2d 396, 463 P.2d 159 (1969).
Assuming, however, that the extent of the authority conferred by a particular power of attorney is sufficient to allow the holder in question to act in his principal's behalf in applying for and receiving a Viet Nam veteran's bonus, we think it must follow that he can exercise the right conferred upon his otherwise‑qualified principal to apply for and receive the bonus as provided for in § 2 (1), supra. The power of an agent, within the scope of his authority, to collect the debts of his principal is beyond question. 3 Am.Jur. 2d Agency § 130; [[Orig. Op. Page 4]] Bjorkstam v. Federal Land Bank, 138 Wash. 456, 244 Pac. 981 (1926); Pfeiffer v. Heyes, 166 Wash. 125, P.2d 612 (1932). For these reasons, we answer your first question in the affirmative.1/
Question (2):
Your second question, as we understand it, is simply whether our foregoing answer is applicable in a case where the eligible veteran who has executed the power of attorney is known to be a prisoner of war or missing in action.
This question must also be answered in the affirmative. We presume that your concern in raising this issue is based on the possibility of double payment in a case where the person executing the power of attorney may, possibly, be deceased at the time application for the bonus is made ‑ a fact unknown to both the agent making application and your office in processing it.2/ While the general rule is that the death of the principal will work an automatic [[Orig. Op. Page 5]] revocation of the power regardless of notice to the holder thereof, this contingency ‑ in the military context ‑ has been considered and differently provided for by our legislature in RCW 73.20.050, 73.20.060, 73.20.070 and 73.20.080, as follows:
"No agency created by a power of attorney in writing given by a principal who is at the time of execution, or who, after executing such power of attorney, becomes either (1) a member of the armed forces of the United States, or (2) a person serving as a merchant seaman outside the limits of the United States, included within the forty-eight states and the District of Columbia; or (3) a person outside said limits by permission, assignment or direction of any department or official of the United States government, in connection with any activity pertaining to or connected with the prosecution of any war in which the United States is then engaged, shall be revoked or terminated by the death of the principal, as to the agent or other person who, without actual knowledge or actual notice of the death of the principal, shall have acted or shall act, in good faith, under or in reliance upon such power of attorney or agency, and any action so taken, unless otherwise invalid or unenforceable, shall be binding on the heirs, devises, legatees, or personal representatives of the principal." (RCW 73.20.050)
"An affidavit, executed by the attorney in fact or agent, setting forth that the maker of the power of attorney is a member of the armed forces of the United States or within the class of persons described in RCW 73.20.050, and that he has not or had not, at the time of doing any act pursuant to the power of attorney, received actual knowledge or actual notice of the revocation or termination of the power of attorney, by death or otherwise, or notice of any facts indicating the same, shall, in the absence of fraud, be conclusive proof of the nonrevocation or nontermination of the power at such time. If the exercise of the power requires execution and delivery of any instrument which is recordable under the laws of this state, such affidavit shall likewise be recordable." (RCW 73.20.060)
[[Orig. Op. Page 6]]
"No report or listing, either official or otherwise, of 'missing' or 'missing in action', as such words are used in military parlance, shall constitute or be interpreted as constituting actual knowledge or actual notice of the death of such principal or notice of any facts indicating the same, or shall operate to revoke the agency. (RCW 73.20.070)
"RCW 73.20.050 through 73.20.070 shall not be construed so as to alter or affect any provision for revocation or termination contained in such power of attorney. (RCW 73.20.080)
Thus, from the foregoing provisions, we think it is eminently clear that our legislature intended to leave the legal relations flowing from a power of attorney entirely unaffected by the unknown death of the serviceman who has executed the power.
We trust the foregoing will be of some assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
THOMAS F. CARR
Assistant Attorney General
*** FOOTNOTES ***
1/In view of our earlier discussion regarding the scope of authority to be determined from the instrument, and in further view of the legislative intent in § 2 (1), to make payment to the qualified veteran himself, we would advise that warrants issued upon applications filed by agents holding powers of attorney be made payable to the qualified veteran‑-rather than the agent. Whether the agent may thereafter convert the warrant to cash or otherwise dispose of it will depend, of course, upon the extent of the authority conferred in the instrument under which he asserts the right to make application in the first place.
2/See subsection (3) of Sec. 2, Chapter 154, supra, which provides that:
"In case of the death of any such eligible person prior to said termination date as referred to in subsection (1) above, or at such time as such person would have been eligible for benefits hereunder, an equal amount shall be paid to his surviving widow if not remarried at the time compensation is requested, or in case he left no widow or in case his widow remarried and he has left children, then to his surviving children, or in the event he left no widow eligible for payment hereunder, or children surviving on such date, then to his surviving parent or parents: PROVIDED, HOWEVER, that no such parent who has been deprived of custody of such child by a decree of a court of competent jurisdiction shall be entitled to any compensation under this 1972 amendatory act."
The possibility of payment of a bonus to a qualified "veteran" not yet released from active military service arises by reason of language contained in Sec. 4 of the act.