A New Jersey durable power of attorney form is a document that grants someone (the “agent”) the legal authority to act and make decisions for another person (the “principal”) in the state of New Jersey.
A durable power of attorney stays in effect even if the principal becomes incapacitated and legally can’t make their own decisions. It is used for financial and business matters.
Laws
In New Jersey, power of attorney forms can be made durable by including the following or similar language:
“This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time.”
“This power of attorney shall become effective upon the disability or incapacity of the principal.”
- Relevant Laws: §§ 46:2B-8.1 — 46.2B-19 (Revised Durable Power of Attorney Act).
- Presumed Durable: No. § 46:2B-8.2(b).
- Signing: A signature is required by the principal and at least one witness.
- Notarization: Signatures must be completed in front of any one of the authorized officers listed in § 46:14-6.1. (§ 46:2B-8.9).
- Statutory Form: No.
Definitions
Durable – A durable power of attorney is a power of attorney which contains the words “this power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,” or” this power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity, and unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument (§ 46:2B-8.2(b)).
Power of Attorney – A power of attorney is a written instrument by which an individual known as the principal authorizes another individual or individuals or a qualified bank within the meaning of P.L.1948, c.67, s.28 (C.17:9A-28) known as the attorney-in-fact to perform specified acts on behalf of the principal as the principal’s agent (§ 46:2B-8.2(a)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Defining Types of Gifts
The document must explicitly state what kinds of gifts an agent is allowed to make on your behalf. This could range from:
- Monetary Gifts: Cash gifts to family members, charities, or others.
- Gifts of Real Estate: Transferring parts of or whole property interests (§ 46:2b-8.13a).
- Securities Transfers: Handing over stocks, bonds, or other investment vehicles.
You have the flexibility to limit your agent’s gift-making abilities. For example, you might specify that they can only give gifts to certain individuals or organizations, or under particular conditions that you set forth.
Key Considerations for Gifting
When determining what gifts your agent can make, consider the following to ensure the gifts reflect your intentions and benefit your estate:
- Alignment with Your Desires: Gifts should match your known wishes or benefit your estate in some tangible way.
- Consideration of Your Values: New Jersey law emphasizes that agents must keep your personal values in mind when making gift decisions. This includes reflecting on the types of gifts you’ve made in the past or expressed interest in.
- Impact on Estate Plan: It’s crucial for the agent to understand how any gifts will affect your overall estate plan, including tax implications and asset distribution among heirs.
Agent’s Authority Limitations
The authority granted to an agent is strictly limited to what the principal themselves could do. This means the agent can only make decisions or take actions that the principal has the power and right to take on their own (46:2b-15).
Revocation and Termination
A power of attorney (POA) can be canceled if the person who granted it (the principal) either destroys all official copies, signs a formal revocation document as per New Jersey law, or gives a written cancellation notice to the person named in the POA (the agent). Simply creating a new POA doesn’t cancel the old one unless it specifically says so. (46:2b-8.10)
Safekeeping and Registration
New Jersey does not have a state-wide registry for Durable Powers of Attorney. However, it is crucial to keep the DPA document in a safe and accessible place. Copies should be given to the agent, relevant family members, and possibly financial institutions or medical providers as needed.
