How to Make a Power of Attorney in New Jersey POA

What Is a Power of Attorney?

A financial power of Attorney (POA) is a legal document that allows someone (the “principal” to grant another person, the “agent” or “attorney-in-fact,” the authority to act on their behalf in financial affairs and legal matters. A healthcare directive is a legal document you use to appoint someone to act on your behalf for healthcare decisions. There are many times when a power of attorney may be helpful, such as if you are out of the country or if you suddenly can’t make decisions for yourself. And if all of a sudden you can’t handle decision-making or manage your financial transactions, your family may have to go to court to name someone as a conservator to step in for you. A power of attorney avoids the need for a conservatorship.

Who Can Be My Attorney in Fact?

Any competent adult (meaning someone with a sound mind) who is 18 or older may serve as your attorney in fact. There are many things to consider when choosing an attorney in fact. Find someone who is trustworthy, organized, and responsible. You can select a family member, friend, attorney, or accountant. An attorney in fact must act in good faith and in the best interest of the principal, or they may be liable to the principal.

Avoid naming a co-attorney in fact because they must either act jointly or can act independently. If they act jointly, what happens if they disagree? If they can act independently, what happens when they contradict each other? The best strategy is to name a primary attorney in fact with a backup or successor attorney in fact in the event your primary choice is unable or unwilling to serve.

What Can My Attorney in Fact Do in New Jersey?

You decide what powers you want to grant your attorney in fact. You can grant your attorney in fact general authority to handle the following transactions involving:

• Real property (buying, selling, or leasing real estate)
• Tangible personal property (buying, selling, or maintaining personal possessions)
• Stocks and bonds
• Commodities and options
• Bank or other financial institutions
• Business entities
• Insurance and annuity contracts
• Estate, trusts, and other beneficial interests
• Claims and litigation
• Personal and family maintenance
• Benefits from government or civil or military service
• Retirement plans

There are other powers that you might grant your attorney in fact which allow them to significantly reduce your property or change how your property is received at your death. You may only wish to do this if you want your attorney in fact to reduce your estate to minimize estate taxes or to qualify you for government benefits and programs, such as Medicaid. These powers are:

• Create, change, or revoke a living trust
• Make a gift
• Create or change rights of survivorship
• Create or change beneficiary designations
• Delegate their authority under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity
• Disclaim property, including a power of appointment
• Exercise authority over your electronic communications
• Exercise authority over your digital assets

Consider carefully what authority you wish to grant your attorney in fact because they have broad powers over your assets.

What Is a Durable Power of Attorney in New Jersey?

A durable power of attorney is a power of attorney that remains effective even when the principal becomes incapacitated. Under §46:2B-8.2(b) of the N.J.S.A, a durable POA must include language indicating that the POA is not affected by the principal’s subsequent disability or incapacity.

When Is the Power of Attorney Effective?

You decide when you want your power of attorney to begin. It can be effective immediately upon your signature, or it may be a “springing power” POA that only takes effect upon a later date or event, such as an incapacity.

When Does the Power of Attorney End?

You can revoke your power of attorney at any time as long as you are mentally competent. Your power of attorney might also end upon:

• Your death
• The death or incapacity of your attorney in fact when there is no backup or successor attorney in fact
• The occurrence of a termination date or event listed in the POA

Additionally, under N.J.S.A §46:2B-8.13a, unless you state otherwise in your POA, any authority granted to your spouse may be automatically revoked upon the filing of an action for divorce or termination of the marriage.

Does New Jersey Have a Statutory Power of Attorney?

No. New Jersey does not have a statutory power of attorney form, but you must follow New Jersey law when making a POA. You can create your own power of attorney suited to your needs or hire an estate planning attorney.

Can I Make My Own Power of Attorney in New Jersey?

Yes. Although there are certain things to know before making a financial power of attorney, you can create one yourself. Many people use self-help solutions with online estate planning forms. Make sure the forms are compliant with New Jersey statutes, and you can tailor the forms for your specific situation. Contact an estate planning attorney for legal advice if you have questions about power of attorney documents.

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How Do I Make My Power of Attorney Valid in New Jersey?

Under N.J.S.A. §46:2B-8.9, your power of attorney must be in writing, signed by the principal, and acknowledged before a notary public or other individual authorized to take acknowledgments to make your POA valid in New Jersey.

Do I Have to Notarize My Power of Attorney in New Jersey?

Yes. You must have a notary public or other authorized officer attest to your signature for a valid New Jersey power of attorney.

What Should I Do After Signing My Power of Attorney?

Once your power of attorney is complete, give copies to your attorney in fact, loved ones, and any third party that you want your attorney in fact to work with. Some third parties, such as a bank or financial institution, may have your attorney in fact complete an agent certification form in which they attest that your power of attorney is effective and they have the authority to serve as your attorney in fact.

Does an Attorney in Fact Get Paid in New Jersey?

Your attorney-in-fact is entitled to reimbursement of reasonable expenses for acting under the power of attorney. However, they may only be compensated for their time if you specify it in your power of attorney or if a court determines that your attorney in fact should receive reasonable compensation.

Is My New Jersey Power of Attorney Valid in Another State?

Yes. Generally, other states will recognize a New Jersey power of attorney created and executed according to New Jersey’s laws.

Can I Revoke My New Jersey Power of Attorney?

Yes, as long as you are still mentally competent (have a sound mind), you can revoke your power of attorney document and your attorney in fact’s authority. To do so, draft a letter of revocation to share with your attorney in fact and any third party that has the original POA. Destroy your original power of attorney document and any copies.

What Estate Planning Documents Should I Have in New Jersey?

A power of attorney is a critical document when you are incapacitated and can’t handle your financial matters. Two other important legal documents are a health care directive when you are living and a last will and testament after your death.

In a healthcare directive or living will, you can appoint someone you trust to get your healthcare records and make medical decisions for you. You can also detail your wishes for what life-prolonging measures you want or do not want when you have an end-stage illness or terminal condition.

In a last will and testament, you appoint someone as your personal representative to handle your estate, name beneficiaries for your property, and name guardians for your minor children. Having a will streamlines the probate process because a court knows your wishes and does not have to follow intestacy statutes to see who inherits your estate.

Fortunately, using online estate planning templates to create a valid power of attorney and other New Jersey estate planning documents is easy.