New Jersey Attorneys Providing Living Wills and Powers of Attorney
Many families never face difficult end-of-life decisions or wrestle with questions of legal and financial competency. Nevertheless, these issues often arise, and a New Jersey attorney is there to help prepare for these events, with documents like powers of attorney and living wills. These instruments take much or all of the guesswork out of such situations and also give the people who make them additional peace of mind.
The truth is that no one knows when or if a debilitating illness or injury may strike, and such conditions often hinder a person’s decision-making ability at a critical moment. This risk abides regardless of age or health. In the absence of adequate planning, your loved ones may struggle to provide this attention on your behalf. Our attorneys at Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, L.L.C. have helped people throughout Warren and Sussex Counties address incapacity planning issues for nearly 50 years, and they are available for your family, as well.
Some Basics About Powers of Attorney in New Jersey
A POA is a document in which one person (the principal) designates another person (attorney-in fact) to make specific decisions under specific circumstances. In the Garden State, these documents are sometimes referred to as proxy directives. Without such a document, there is a risk that strangers may make important decisions about your finances or even your very life. There are essentially four types of POAs in Sussex County:
- General POA: The broadest power of attorney is also one of the least-used POAs. This instrument goes into effect immediately and remains in force until the principal dies or becomes incapacitated. A person who has a large and complicated estate that s/he no longer wishes to manage may use a general POA, but other that this situation, this document has limited applicability.
- Durable POA: In contrast, the durable POA is by far the most common type of these documents, and indeed, this is the document many people think of when they think of a power of attorney. This instrument is generally limited to healthcare decisions and remains in effect even if the principal is incapacitated. Typically, the attorney-in-fact is an adult child.
- Limited POA: These documents are common in non-estate situations. For example, a homeowner might give a real estate lawyer power of attorney in a sale or closing. Because they only grant specified powers and because they often have expiration dates, New Jersey elder care lawyers sometimes recommend limited POAs to their clients that have a temporary disability or need help in a few specific areas, for whatever reason.
- Springing POA: This document is much like the durable POA, except a springing POA only takes effect upon the principal’s incapacity. This arrangement works well in many cases, but there may be an issue as to whether or not a person is truly incapacitated; to avoid such a dilemma, most people opt for a durable POA instead.
Much like a will, a power of attorney must be witnessed by two individuals and acknowledged by a notary. It is usually best to go to a lawyer for this document and avoid do-it-yourself forms. Any error on the form can have significant negative consequences that are difficult to overcome, and the POA must be executed in the proper way in order to be valid in court.
Why Should New Jersey Residents Have Living Wills?
A living will (an instruction directive) records your wishes about medical treatment in writing. Courts have repeatedly held that almost any healthcare decision that a person makes in this situation is binding, as long as it does not adversely affect someone else’s physical health. Living wills only concern healthcare decisions; despite the name, they have nothing to do with property in New Jersey.
A living will takes effect once a doctor has determined that the person who made it lacks capacity to make decisions. This phrase is a legal term of art which means that the person who made the living will and is now receiving treatment cannot:
- Understand the nature and consequences of the available treatment options, or
Communicate his/her wishes in any verbal or nonverbal manner.
- Doctors normally make the lack of capacity decision after they consult with other medical professionals who have been around the patient and with the patient’s family members.
In most cases, doctors are legally and ethically required to follow the patient’s wishes that are expressed in a valid living will. Otherwise, that obligation simply does not exist. The doctor or hospital may deny the wishes in a living will if:
- The patient requests medical treatment which the doctor believes is either medically ineffective or is outside the generally accepted standards of valid medical care (e.g. the doctor will not practice voodoo or faith healing), or
- The instruction violates the doctor’s or hospital’s moral or religious convictions.
In the latter case, the doctor usually has a legal duty to refer the patient to a facility that will provide the requested care, if possible.
For the sake of convenience, especially if both the living will and POA only concern healthcare issues, some New Jersey elder care lawyers combine a living will and power of attorney into an Advance Directive. It is usually best to keep a copy of these documents on or about your person and the original in a secure location, like a bank box.
Reach Out to Compassionate Lawyers
No estate plan is complete without a living will and power of attorney that are tailored to individual needs. For a free consultation with an experienced elder law attorney in Sussex County, contact Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, L.L.C. Home and hospital visits are available.