Get the Advice You Need From an Experienced New Jersey Elder Care Attorney who Counsels Clients on the Uses and Privileges of Having a Power of Attorney
A Durable Power of Attorney is an Important Legal Document. At Hanlon Niemann & Wright, Our Attorneys Have Prepared Thousands of Powers of Attorney for Over 40 Years. Please Contact Us Today.
A Durable Power of Attorney in NJ
A Durable Power of Attorney is an indispensable planning tool for just about everyone over age 18. It is particularly useful for individuals who are concerned about physical or mental disability or incapacity. The following discussion addresses the major highlights, benefits, disadvantages and considerations when signing a Durable Power of Attorney (DPA).
What is a “Power of Attorney”?
Let’s start our discussion by first answering the question of “what is a Power of Attorney”. A Power of Attorney is a written document which grants legal authority to a named person to act on your behalf. You can grant this authority for almost anything you want done, whether broadly or limited to just one or two specified matters (i.e., writing checks and/or making bank deposits), selling your automobile or house. Your Power of Attorney can be for a limited period of time (say 6 months) or indefinitely.
Why a Durable Power of Attorney in New Jersey is So Important to Aging Individuals
Actual Client Testimonial
Prior to her death in 2008, I was my Mom’s Power of Attorney. She moved to North Carolina to live out her final years with me and my family. Previously, she had lived her entire life in New Jersey. After her death, property in New Jersey left to me and my siblings, was supposed to be sold and divided among us but unfortunately an unhappy sibling refused to cooperate.
After researching attorneys in New Jersey, I hired Fredrick P. Niemann, Esq. to represent my interests. I am glad that I did. His office was terrific and advocated forcibly and professionally on my behalf. We were kept informed throughout the entirety of the case and the quality of the work was excellent. While stressful at times, the legal dispute was successfully resolved, the case against me dismissed and I was able to cause the property to be sold and the proceeds distributed.
Mr. Niemann and his very capable associates and paraprofessionals did a competent and thorough job and I recommend them to all who are reading this testimonial.
– Craig and Lisa Rose, Beaufort, North Carolina
What Benefits Does a Durable Power of Attorney Provide?
A Durable Power of Attorney (POA) can avoid the need for a conservatorship or guardianship. A conservatorship or guardianship involves a court proceeding in which a person (the “conservatee” or the “incapacitated person”) is found to be unable to handle his or her own affairs, and another person (the “conservator” or “guardian”) is appointed to handle their affairs. A conservatorship or guardianship can be an expensive process (in excess of $7,500), with ongoing court supervision and bonding required until the death of the incapacitated person. I discuss guardianships and conservatorships on this site (click here) to learn more about each subject.
A properly drafted Durable Power of Attorney satisfies the need for “decision making” by having a person appointed to act with legal authority while the giver of that authority has what is known as legal capacity. No court proceeding or judicial involvement is required. A POA document is one of the most important documents you can have.
Is a “Durable” Power of Attorney Different than just a Non-Durable Power of Attorney?
A non-durable Power of Attorney is valid only for as long as the person signing the document has the capacity to understand its significance and meaning. It is not intended to be durable, meaning it’s not effective “forever”, after the loss of competency. But you can choose to make your POA durable, meaning it continues to have legal standing and recognition should you become seriously disabled or incompetent. There are two types of a “Durable” Powers of Attorney. These types are:
A Durable Power of Attorney that is:
(1) Effective immediately. This power is effective when signed and remains effective, even if the person becomes completely incapacitated.
A Durable Power of Attorney that is:
(2) Effective only upon incapacity. This type of power becomes effective if and only if the person becomes incapacitated in the future.
What Powers and Decision-Making Authority Can Be Given in a Durable Power of Attorney?
The power to handle a person’s personal and financial affairs can be authorized in a POA document if thoughtfully written and described. It requires precise and necessary language. This language can include the power to invest and sell assets, to enter into contracts, to collect and recover assets, to make gifts, to deal with all types of insurance, to operate or sell a business, to transact banking, to file documents with the State of New Jersey or other governmental agency on your behalf, including the IRS and to handle other tax and business issues. Alternately, the document can authorize only a few areas of decision making authority and prohibit others. It can also address life care planning and personal decision making for another’s welfare. For example, selection of doctors, medications, living arrangements, medical care insurance plans, etc.
Should You Use a “Form” Durable Power of Attorney?
My answer is sometimes yes, often no. Legal forms are available but may be inadequate for your needs. If they are used, they should be used only after advice from an attorney with an understanding of their uses and limitations. There are several reasons for this warning:
- These documents convey an enormous amount of authority. An “attorney in fact” or agent can and often does have complete control over a person’s assets. As such, it is frequently necessary to go beyond the form(s) to build in protections for the signing person.
- The special needs and limitations unique to the person often necessitate that this person has a personalized document prepared.
- Some form POA’s require the person to choose from various options included in the document, but do not explain the implications and consequences of each choice.
- Many standard forms omit required specified language necessary to authorize action by the agent, for example, asset protection planning and qualifications for Medicaid eligibility.
An experienced New Jersey Power of Attorney lawyer can assist you. A Durable Power of Attorney, if properly drafted, may be one of the least expensive forms of legal insurance a person can buy. Perhaps even more important than the documents that discuss how we want things distributed upon death, the Durable Power of Attorney specifies what we want done while we are still alive, but unable to handle our affairs on our own. Anyone who is at least eighteen years of age or over can sign such a POA.
Fredrick P. Niemann Esq.
Have questions about a NJ Durable Power of Attorney? Then contact Fredrick P. Niemann, a trusted and experienced NJ elder care attorney toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. He welcomes your inquiries.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Care Attorney