The Value of a Durable Power of Attorney, Healthcare Directive, and Living Will
A durable power of attorney is a powerful planning document. It is particularly useful for middle-aged and older individuals. Younger people with disabilities, and those traveling abroad who are concerned about their physical health can also benefit from a well-written power of attorney. Without a power of attorney in place, no person is automatically given legal authority to make decisions on behalf of anyone else. A spouse cannot make legal decisions for his or her spouse, a parent cannot make decisions on behalf of his or her adult child(ren), and a child cannot make decisions on behalf of his or her elderly parents.
What is a “Durable Power of Attorney” and What Authority Does It Grant?
A “Power of Attorney” is a written document that legally permits a person to make authorized decisions and to act on their behalf. We call the person who is authorized to act, the “agent”. Any competent adult (including an adult child of yours over age 18) can be an agent. The Power of Attorney document defines within its contents what the agent can and cannot do.
Depending on your family’s needs, a Power of Attorney can be very broad and general or it can be very limited and precise. If you want a Power of Attorney to act on your behalf immediately or only after you are incapable of making decision(s) for yourself, the document needs to include a paragraph that says the document will remain in effect even if you become incapacitated. This broad power is what makes it a “Durable” Power of Attorney. Some people choose to have a document written that allows their agent to act on their behalf, but only if the person becomes disabled or incapacitated. Even with this limitation, the document is still referred to as a “Durable” Power of Attorney.
Sometimes, problems arise after someone has signed a Power of Attorney. The most common problem is when the Agent and the person who made the Power of Attorney disagree. This can happen when the agent insists that the person who gave the Power of Attorney must go to live in a Nursing Home because their health is failing or wants them to make a financial decision or plan, and the person who owns the money disagrees. So what do you do?
It is important to understand that an Agent has to abide by the wishes of the person who made the power of attorney, even if they no longer have full capacity, as long as those wishes are not inherently harmful to the person who made the document. This is a contentious area of the law and if you’re confronted with a conflict between the Power of Attorney and his or her principal, you absolutely should call me at (855) 376-5291 or email me at fniemann@hnlawfirm.com. This same advice applies if you have a family member (i.e., a sibling who is defying the instructions of an aging parent or another family member against his or her directions and freedom of choice in the absence of a judgment of incapacity.
Why Have a Durable Power of Attorney?
Should you become incapacitated in the future, a power of attorney avoids the need for family members (and others) who care about you to institute a guardianship or conservatorship proceeding in the courts of NJ on your behalf (see our guardianship page for a more detailed discussion about guardianship in NJ, click here). A well-written power of attorney can save you literally thousands and thousands of dollars in unnecessary guardianship expenses should you become incapacitated. This is because your Power of Attorney document appoints an individual as your legal representative and specifies what legal authority he or she will have concerning your important financial, personal, medical, and quality of life decision-making. A Power of Attorney is often an older person’s most important legal document together with a Living Will, Medical Directive and Health Care Proxy.
If you already have a power of attorney, there are some considerations to ensure your document is valid and continues to reflect your wishes should something happen to you. The first thing you should check is the age of the document and the date you signed it. If the document is more than 10 years old, banks in New Jersey are not required to recognize it. We recommend that your general durable power of attorney be updated and/or reviewed every 5 or so years, or whenever there is a major change in life’s circumstances (i.e. divorce, death, relocation, etc.) You should also ensure that your named attorney(s)-in-fact and any successors are alive, in good mental and physical health, and have current addresses on the power of attorney document. If not, the document should be updated.
Learn More About a Power of Attorney by Reading Here
In the discussion that follows, the major highlights and benefits of a Durable Power of Attorney (DPA) or (POA) are explained from an experienced Power of Attorney attorney in New Jersey. The discussion is not intended to be exhaustive, and legal counseling may be necessary for persons interested in signing such a document. Why? Because a Power of Attorney is a powerful legal tool!
A POWER OF ATTORNEY IN NEW JERSEY AT A GLANCE
- A Power of Attorney is often an aging person’s most important legal document.
- A Power of Attorney avoids the need for a guardianship proceeding in Court and keep’s the State of NJ out of your life.
- A Power of Attorney can potentially save you nearly $8,000 of unnecessary guardianship expenses should you become incapacitated.
- You get to choose your legal representative as your Power of Attorney to make decisions for you and in your best interests, not a judge.
- A well-written Power of Attorney addresses your financial, personal, medical and quality of life and gives legal authority to your designated representative.
Fredrick P. Niemann, Esq., a 40+ year experienced NJ elder care and elder law lawyer, says “you absolutely must have a Power of Attorney. Don’t delay.”
CHECKLIST TO CONSIDER IF YOU NEED A NEW OR REVISED POWER OF ATTORNEY
- Is your General Durable Power of Attorney more than 10 years old? If so, banks in New Jersey are not required to recognize it. We recommend that your General Durable Power of Attorney and Living Will be updated or reviewed every 5 or so years.
- Does your General Durable Power of Attorney continue to name the appropriate representative for you? You can name one or more attorney(s)-in-fact to act in your place with reference to your financial matters if you are unable to do so. You should verify that your named attorney(s)-in-fact and any successors have current addresses.
- Does your General Durable Power of Attorney allow for Medicaid and estate tax planning or gifting? Many persons want the ability to engage in asset protection planning to shelter assets from the cost of nursing home care, income and death taxes. Your General Durable Power of Attorney should specifically grant your attorney(s)-in-fact the power to engage in this type of planning. We are recommending to all of our clients that they update their General Durable Power of Attorney if it does not specifically authorize this type of asset and income protection planning in the future.
- Does your Health Care Power of Attorney reference the Health Insurance Portability and Accountability Act (“HIPAA”)? The HIPAA privacy rules have created a new category of private information called “Protected Health Information” (PHI) or “Protected Medical Information” (PMI). In order to avoid any issues about the persons to whom your health care provider may divulge your PHI, you should specifically state who has the right to receive your PHI. We are recommending to all our clients that they update their Health Care Powers of Attorney to include a HIPAA provision to avoid any inability of a Health Care Representative to receive information in the event of a medical emergency.
A DURABLE POWER OF ATTORNEY IN NEW JERSEY CAN GREATLY ASSIST IN ASSET PROTECTION PLANNING AND LIFE CARE PLANNING
There is specific language that the attorneys at Hanlon Niemann & Wright often recommend putting into a power of attorney. First, the document should contain a clause granting your attorney(s)-in-fact the power to engage in asset protection, and estate tax planning and/or gifting. Many persons want the ability to engage in asset protection planning to shelter assets from the cost of nursing home care and death taxes.
If you have questions about a Power of Attorney, Health Care Directive and Living Will under NJ law, contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com. He’ll set up an office or video consultation, or conference call at your convenience. He is easy to talk to and will answer your questions in plain, simple English.
Help! My child has developed a dangerous and extreme mental condition.
If you have kids in college, please watch this video about a concerning increase we have been seeing in college-age kids with psychosis, emotional and cognitive problems. Hanlon Niemann & Wright can help NJ families find resources available to deal with these issues. We know where to go and how to get your child the help and resources he/she needs during this difficult period. Call Mr. Niemann today at (855) 376-5291 or email him at fniemann@hnlawfirm.com.
Fredrick P. Niemann Esq.
If you have questions about a Power of Attorney, Health Care Directive, Living Will and release of protected medical information, guardianship, or elder law matter in New Jersey, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.
Set up an office consultation at your convenience. He is easy to talk to and will answer your questions in plain, simple English.
TESTIMONIALS
My husband and I were together for almost twenty (20) years. We met with Mr. Niemann to have our Wills, Powers of Attorneys and Healthcare Directives prepared. Mr. Niemann was insistent that we have a Comprehensive Power of Attorney, Healthcare Directive and Living Will to protect us if either one of us became sick. Recently, my husband passed after a sudden illness. Thank Goodness for the Healthcare Directive and Power of Attorney prepared by Mr. Niemann. I submitted the documents to the attending physician who promised to honor their terms and purposes. It saved me from possible anguish in case there was a disagreement as to whether life support should or should not be continued. I now better understand the benefit to having a Power of Attorney and Healthcare Directive and am appreciative of Mr. Niemann’s advice concerning the importance of these documents.
I have agreed to sponsor this testimonial because I know firsthand the importance of having a Power of Attorney and Healthcare Directive when faced with an unexpected personal or family emergency.
-Donna Foster, Manalapan, NJ
TESTIMONIALS
My son is an attorney in New Jersey. I am retired and live in Ocean County, New Jersey about 45 minutes away from my son. I needed a lawyer to look at my estate planning documents including Will, Power of Attorney and Health Care Directive. My son recommended Hanlon Niemann in Freehold, New Jersey, specifically Fredrick P. Niemann. I took his advice and met with Mr. Niemann. I am glad that I did. He is a warm and engaging person. No pretense, no airs about him. I immediately felt at ease and we talked about everything that I wanted to do and accomplish with my estate planning. I felt I could open up to him and tell him what was really important to me. He prepared the documents as we discussed and sent them to me in advance to review and approve. Then he scheduled me for a signature session where my appointment was promptly kept and a friendly, positive staff witnessed all my documents. My son, the attorney, gave me good advice when he recommended Mr. Niemann.
If you are searching for a special attorney, someone who is experienced, likeable as a person and professional, call Mr. Niemann. I felt good about my choice.
-Frank Mollo, Manchester, NJ
Recent Speaking Events by Fredrick P. Niemann, Esq.
You Can View Fred’s Current Schedule by Clicking Here
Fredrick P. Niemann, Esq. was invited by the Office of Elder Rights and Adult Protective Services of the Department of Health and Senior Services, Division of Aging and Community Services, to make comments on existing Adult Protective Services Programs on August 25th at the State Capitol located in Trenton, New Jersey.
On March 6th, Fredrick P. Niemann, Esq. addressed the Monmouth County NJ Bar Association Family Law Committee on Special Needs Trusts, Supplemental Needs Trusts for adult and minor incapacitated children and aged parents and their use in asset planning and eligibility for government benefit programs, including Medicaid, SSI and SSD.
Written by New Jersey Power of Attorney Lawyer Fredrick P. Niemann, Esq. of the Hanlon Niemann & Wright Law Firm in New Jersey