Quick Summary: Having a power of attorney for aging parents in place clarifies who can make important decisions. It’s important to have these documents in place before the unexpected happens. This guide from JCHC offers families insight into the types of power of attorney and specific details about power of attorney regulations and guardianship in New Jersey.
Disclaimer: The information included in this article is for informational purposes only and is not intended as legal advice. Consult your lawyer for specific legal advice regarding your loved one and power of attorney laws in your state.
It’s a situation no family wants to be in: an aging parent has been hospitalized, or is showing signs of severe cognitive decline. Your family suddenly needs to access their bank accounts, make medical decisions for them, and possibly even sign for a new apartment on their behalf.
While scenarios like these are incredibly stressful, many families find themselves in an even more frustrating position: they don’t have legal authority to make these decisions.
Having a power of attorney in place before the unexpected happens can help prevent this situation.
At Jewish Community Housing Corporation, we’ve been helping families of all faith traditions navigate difficult situations like these for nearly 45 years. We’re here to answer your family’s questions and offer helpful guidance during every step of the senior living search. With that in mind, we’ve put together this guide on power of attorney for aging parents.
Why Is a Power of Attorney for Aging Parents Necessary?
A power of attorney (POA) is a legal document that grants someone the ability to act on someone else’s behalf.
A POA names two different people—a principal and an agent. The principal is the person who grants permission for someone to make decisions for them. The agent is the person who makes decisions for the principal. Despite what the name suggests, an agent does not have to be a lawyer; it can be anyone the principal chooses.
If your parents are getting older, it’s important to check whether a power of attorney is already in place before it’s needed. Many people assume that they will be able to create a power of attorney once their loved one already has a medical condition or develops dementia; however, once someone loses mental capacity, they are unable to sign a POA or other documents, and legal authority is needed, according to the National Academy of Elder Law Attorneys.
It’s estimated that nearly 70% of adults over 65 will eventually need some form of long-term care services and support in their lifetime, according to the U.S. Department of Health and Human Services. Unfortunately, results from the University of Michigan’s National Poll on Healthy Aging show that less than one-third of adults over age 50 say they have a designated durable power of attorney in place for medical care.
The National Poll on Healthy Aging also revealed a gap between data on long-term care and aging adults’ perceptions. Less than half of respondents predicted they would likely need long-term care, and a similar number said it seemed too far off to plan for.
While some older adults may resist the idea of a power of attorney because of long-term care stigma, having one on file confirms their preferences in advance. A POA does not take away their independence or freedom.
If an individual becomes incapacitated without a designated power of attorney, decision-making authority typically falls to the court. Even if you never use it, having a POA on file provides confirmation and peace of mind that a well-documented plan is in place, which can make unexpected events easier for your family to manage together.
What Are the Different Types of Powers of Attorney?
There are multiple types of powers of attorney, each granting different kinds of authority. Understanding the nuances of each ensures you and your family have what you need if you must make decisions for a loved one.
Durable vs. General Power of Attorney: Understanding the Difference
For families creating a power of attorney for long-term care planning, the difference between durable vs. general power of attorney is critical.
A general power of attorney should not be used for long-term care planning because it ends immediately if the principal becomes incapacitated. General POAs are typically used for short-term or temporary needs, such as having a representative at a real estate closing. A general power of attorney automatically stops when it is revoked, the principal becomes incapacitated, or the principal passes away.
A durable power of attorney remains valid even if the principal loses capacity to make decisions for themselves. However, it must state durability language explicitly confirming that the power remains in effect if the principal becomes incapacitated. A durable power of attorney remains in effect until the principal’s passing.
New Jersey Power of Attorney Requirements
For families caring for loved ones in New Jersey, it’s even more critical to ensure they have a durable power of attorney on file before they become incapacitated.
At the time of this blog’s publishing, New Jersey is not one of the 32 states that have enacted the Uniform Power of Attorney Act (UPOAA), according to the Uniform Law Commission. This is important because UPOAA states consider all powers of attorney durable by default. In New Jersey, the opposite is true: a POA is not considered durable unless it expressly states that the document remains in place if the principal becomes incapacitated, per New Jersey Revised Statutes Section 46:2B-8.2.
The New Jersey Revised Statutes also note that a power of attorney must be in writing, duly signed, and acknowledged by a notary public or authorized officer.
Additionally, for healthcare decision-making authority, New Jersey law requires a separate document, known as a proxy directive or durable power of attorney for health care, according to the New Jersey Department of Health. Any power to award property must also be stated in a POA, because an agent cannot give away the principal’s property unless the document grants that power. Broad or generalized powers do not apply.
Other Types of Power of Attorney
Beyond the durable and general types, there are other types of power of attorney that are used in specific situations:
- Healthcare power of attorney (NJ – proxy directive): In New Jersey, this is known as a proxy directive or durable power of attorney for health care, according to the New Jersey Department of Health. In this case, the agent acts as an individual’s proxy or surrogate and can talk to doctors and make decisions about their care. For this to take effect a doctor must determine that the individual cannot communicate or make decisions on their own, according to the Department of Health. It ends when the individual regains full capacity. Healthcare POAs can grant the agent authority to accept or refuse treatments, choose doctors, or handle palliative care decisions.
- Limited power of attorney: Unlike a general power of attorney, a limited power of attorney grants the agent a narrow scope of authority to act on the individual’s behalf for a specific purpose or task, or for a specific period of time. Once the task is completed or the time frame ends, the limited POA expires.
- Springing power of attorney: This type of POA grants an agent authority once a specific trigger event or condition occurs. As the name suggests, it “springs” into effect once that event or condition occurs. This is another option for caregivers who may need to step in if a loved one is mentally or physically incapacitated. However, as legal self-help organization Nolo points out, an agent must first prove the event occurred before they can act, and a physician’s certification may be required, creating activation gaps and potential risk in an emergency.
When to Get Power of Attorney for an Aging Parent
If your aging parent is no longer able to manage living on their own, moving them into a community like Lester Senior Living in Whippany, NJ, is likely the next step. But do you need to have a power of attorney? What do New Jersey laws require?
The answer depends on your parent’s current mental capacity:
- If your parent has full capacity to make decisions for themselves, New Jersey does not require a power of attorney to move them into senior living, but the decision is theirs to make. State statutes section 26:2H-128 dictates that assisted living residents have the right to manage their own finances and delegate authority. If they choose, they can decide to appoint someone in your family as their agent through a power of attorney. However, as mentioned earlier, they must do this while they are fully capable of making that choice of their own accord.
- If your parent still has capacity, but is experiencing cognitive decline, there is a limited window of time to get a power of attorney in place. All types of powers of attorney require the principal to have capacity to make a decision.
- If your parent no longer has mental capacity to make decisions on their own, the window of opportunity for power of attorney has passed.
Guardianship in New Jersey
If a parent no longer has full mental capacity and is unable to make decisions about their care or finances, families can pursue a guardianship.
- Guardianship requests can be filed through your County Surrogate.
- Guardianship requests must include affidavits or certifications from two physicians, or one physician and a licensed practicing psychologist, based on personal examinations.
- The court will appoint an attorney to represent the alleged incapacitated individual. The attorney will either support the request, oppose it, or suggest modifications. If the court-appointed attorney doesn’t dispute the need for guardianship or the recommended guardian’s ability, the court may appoint a guardian.
For more information about filing for adult guardianship in New Jersey, visit the New Jersey Courts Guardianship Self-Help guide.
For more details on determining whether an aging parent needs assisted living, read our post on 5 Signs It May Be Time for Assisted Living Care.
How JCHC Can Help
When the unexpected happens, even the most prepared families can feel overwhelmed, frustrated, or confused. Understanding the different types of power of attorney and consulting with a lawyer on the right path is complex. And getting a power of attorney for aging parents is only the first step—figuring out where they will live is a completely different set of choices.
Having a trusted guide by your side can make the process more manageable. JCHC is a trusted leader in senior living, and as a non-profit organization, we’re dedicated to ensuring seniors of all faiths are surrounded by support, purpose, and community. We aim to give families peace of mind, knowing their loved ones are cared for in a welcoming setting filled with loving kindness.
With multiple residences in Northern New Jersey, JCHC offers a place where your loved one will receive support and the best possible care. At our Lester Senior Living residence, we offer multiple lifestyle options under one roof. Even if your loved one’s needs change over time, they can easily transition to assisted living or memory care without leaving the community and the friends they’ve made, subject to assessment and availability. If you’re looking for a place for your loved one to recover and rest, Lester Senior Living also offers short-term respite care stays. Respite care guests receive the same level of care and access to the same amenities as our full-time residents.
Our team of senior living experts is available to help answer any questions you have about power of attorney and senior living. If you’re wondering “What do I do next?” our team is here to help point you in the right direction. Contact us today to talk with our caring team. We’re here to offer you and your loved ones the guidance you need to make the best decisions for your family.
Frequently Asked Questions
Q: What are the different types of power of attorney?
A: The main types of power of attorney are general, durable, healthcare, limited, and springing. A general POA covers financial and legal matters but ends at incapacity. A durable POA continues through incapacity. A healthcare POA covers medical decisions. A limited POA authorizes one specific task or time period, and a springing POA takes effect only when a defined trigger occurs. Families planning for long-term care usually need a durable POA plus a separate healthcare document.
Q: What is the difference between durable vs. general power of attorney?
A: A general power of attorney ends the moment the principal becomes incapacitated, which is usually when families need it most. A durable power of attorney stays in effect through incapacity and lasts until the principal’s death. In New Jersey, durability is not automatic—under N.J.S.A. 46:2B-8.2, the document must expressly state that the authority continues if the principal becomes incapacitated.
Q: When should I establish a power of attorney for an aging parent?
A: A power of attorney for an aging parent can only be obtained while your parent still has the capacity to understand and sign it. The window closes once cognitive decline advances. If a parent shows early signs of decline but is still able to make their own decisions, that is the most important time to act.
Q: Do I need a power of attorney to move a parent into senior living in New Jersey?
A: Not if your parent still has capacity. New Jersey does not require a power of attorney for a move to senior living. Assisted living residents in New Jersey have the right to manage their own finances and delegate that authority if they choose. A POA becomes necessary when a parent can no longer make or communicate those decisions.
Q: What happens if my parent has already lost their mental capacity to be an active participant in this process—do we need guardianship in NJ?
A: A power of attorney can no longer be signed once an individual no longer has mental capacity to make decisions on their own, and guardianship in NJ is generally the remaining path. Guardianship is filed through your County Surrogate and requires certifications from two physicians, or one physician and one licensed practicing psychologist, based on personal examinations. The court appoints an attorney to represent your parent. This is a slower and more involved process than signing a POA would have been, which is the strongest argument for handling it early.