As we move through life, our parents who cared for and protected us in our youth often become the ones in need of care and protection. Illness, disease and natural aging erodes memory, faculties and routine decision-making skills. This is undoubtedly a confusing and frightening experience for the parent who now struggles with day to day activities. It is equally taxing on the children who must balance the emotions and responsibilities they feel while witnessing their once revered and trusted parent deteriorate. At some point, it may become necessary for the child to make decisions in the best interest of the elderly parent regarding their finances or medical treatments. New Jersey law recognizes two simple documents through which the elderly parent can voluntarily cede decision making power to a trusted individual in the event of incapacity. These documents are called powers of attorney and advance directives for health care. The contents of this article will analyze and explain the process and benefits to having a power of attorney and advance health care directive.
The Power of Attorney
A power of attorney is a written instrument by which an individual known as the principal authorizes another individual or individuals, known as the attorney-in-fact, to perform specified acts on behalf of the principal as the principal’s agent. N.J.S.A. §46:2B-8.2a. 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 other 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. N.J.S.A. §46:2B-8.2b.
Typically, a power of attorney gives the attorney-in-fact legal authority to take possession of the principal’s properties, to collect rents and profits from such properties, to sell, transfer, convey, or mortgage lands of the principal, to pursue or defend legal claims of the principal, to pay or settle debts of the principal, to manage bank accounts of the principal etc. The attorney-in-fact is under a fiduciary duty to act within the powers delegated by the power of attorney and solely for the benefit of the principal. N.J.S.A. §46:2B-8.13.
A power of attorney must be in writing and signed or acknowledged by at least one competent witness. N.J.S.A.§46:2B-8.9. A power of attorney is revoked when the principal destroys all executed originals of the power of attorney or when the principal delivers to the attorney-in-fact a written revocation. N.J.S.A. §46:2B-8.10. Unless expressly so provided in a subsequent power of attorney, the subsequent execution of another power of attorney does not revoke prior powers of attorney. Id.
The Advance Health Care Directive
An advance heath care directives (“advance directive”), commonly known as a “living will,” is a legally binding document that nominates a health care representative (“HCR”) in the event of incapacity and states the signor’s preferences for medical treatment and end of life care, including but not limited to, life sustaining treatment. An advance directive does not become operative until: 1) it is transmitted to the attending physician or health care institution; and 2) it is determined that the patient lacks capacity to make health care decisions. N.J.S.A. §26:2H-59. Whether the patient lacks capacity is determined by the attending physician and one or more confirming physicians. N.J.S.A. §26:H-60. If it is determined that a patient lacks decision making capacity, the HCR is authorized to make decisions to accept or refuse any treatment, service, or procedure used to diagnose, treat or care for a patient’s physical or mental condition including life-sustaining treatment. N.J.S.A. §26:2H-61. The HCR must act in good faith and within the bounds of authority granted by the advance directive. Id. Additionally, the HCR must seek to make the health care decision the patient would have made had he or she possessed decision making capacity under the circumstances or, if the patient’s intent is unknown, in the best interests of the patient. Id.
A competent adult may execute an advance directive at any time. The advance directive must be signed and dated by the declarant in the presence of two subscribing witnesses, who shall attest that the declarant is of sound mind and free of duress and undue influence. N.J.S.A. §26:2H-56. The proposed HCR cannot act as a subscribing witness to the execution of the advance directive. Id. Alternatively, the advance directive may be signed and dated by the declarant before a notary public, attorney at law, or other person authorized to administer oaths in the State of New Jersey. Id. An advance directive may be revoked by notifying, either orally or in writing, the HCR, physician, nurse, or other health care professional, or other reliable witness, or by any other act evidencing an intent to revoke the advance directive. N.J.S.A. §26:2H-57.
Benefits of Executing a Power of Attorney and Advance Directive
If you are concerned for the future health and safety of a parent or other elderly loved one, a power of attorney and advance directive can provide you the piece of mind that in the event of incapacity, a trusted loved one will be able to act on the principal’s behalf. If financial or medical decisions become urgent, these documents alleviate concern and provide insight into what the principal would have wanted. In the event of incapacity, the attorney-in-fact can manage the financial affairs of the principal to alleviate undue financial burden on family members while the HCR uses the instructions of the advance directive to carry out the principals wishes regarding medical treatment. The clearly defined powers and authorities avoid rising tensions between family members who disagree as to the best interests of the parent.
Without a power of attorney or advance directive, in the event of incapacity, the time consuming and expensive legal process to appoint a guardian or conservator may be necessary to achieve the same legal effect. Problems arise when individuals fail to execute powers of attorney or advance directives prior to incapacity because at that point, despite the incapacity, only the principal retains the power to make decisions regarding finances and medical treatment.
Whether or not to execute a power of attorney and advance directive is an uncomfortable but necessary conversation to have with your elderly loved ones. The experienced attorneys at Scura Wigfield Heyer Stevens & Cammarota LLP understand these considerations and can guide you in drafting powers of attorneys and advance directives to fit your needs. If you are considering planning for the future through a power of attorney or advance directive, contact our offices to schedule a free consultation.