By Angela C. Tompson, Esq.
Whose Vote is it, Anyway?
SB 323, Powers of Atorney, and Designee Voting B
y now, anyone familiar with common interest de- velopments has heard about Senate Bill (SB) 323— the infamous 2019 legislation which significantly changed the way common interest developments conduct internal elections. Much has already been written regarding the new rules regarding holding elections every four years, candidate qualifications, third party inspectors of elections, and disclosure of member email addresses.
However, a less-publicized impact of SB 323 is its authoriza- tion of voting by non-member designated agents, including via powers of attorney and entity appointments.
Tis is new territory for many associations and their manag- ers. Accordingly, this article discusses the characteristics of a proper power of attorney for purposes of adhering to the new law and also addresses the separate, but related, topic of votes cast by designees of legal entities such as corporations and trusts.
Voting by Attorneys-in-Fact
Tere is a cartoon comic that has surfaced in numerous publications and in various forms over the years (so often, in fact, that the original artist and/or source could not be iden- tified in order to assign due credit).
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the cartoon features a perfectly ordinary-looking person sit- ting among an assortment of super heroes, one of whom asks, “what’s your super power?” To this, the ordinary per- son responds: “Oh, I have the power of attorney.”
While a power of attorney is not as remarkable as the abil- ity to fly, spin webs, or see through solid objects, it is not wholly inaccurate to characterize it as a super power. A per- son who holds a general power of attorney has unfettered access to, and control over, the financial and legal affairs of another. Someone holding such power can sign documents, enter binding contracts, withdraw funds from accounts, manage businesses, and buy and sell property—legally—in the name of the person who granted the power.
In most adaptations,
With the passage of SB 323, the Legislature has expanded the power of attorney into yet another area: common inter- est development elections. Civil Code section 5105 con- tinues to require—as it did before—that associations adopt operating rules regarding elections. Te amended version of the statute, however, includes new requirements providing that such election rules must “prohibit the denial of a ballot to a person with general power of attorney for a member,” and “require the ballot of a person with general power of attorney for a member to be counted if returned in a timely manner.” (Civ. Code § 5105(g).)
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