by Jose D. Roman | Feb 12, 2026 | Medicaid, Medicaid Planning, Power of Attorney
When caring for an aging parent or a disabled loved one, convenience and simplicity is usually the goal, especially when it comes to managing money. Many families find it convenient to add a parent’s name to a college aged child’s account or an adult child’s name to an aging parent’s account, assuming this is a smart way to deposit money and manage bills.
However, in the world of New Jersey Medicaid, this convenience can become a costly crisis. When a loved one needs to apply for Medicaid, that joint account might be the very thing that triggers a denial.
The Rule You Need to Know: N.J.A.C. 10:71-4.1(d)2
New Jersey Medicaid doesn’t view joint accounts the way you do. Their treatment of these funds is governed by N.J.A.C. 10:71-4.1(d)2. The regulation states:
When a savings or checking account is held by the eligible individual with other parties, all funds in the account are resources to the individual so long as he or she has unrestricted access to the funds (that is, an “or” account), regardless of their source. When the individual’s access to the account is restricted (that is, an “and” account), the county welfare agency shall consider a pro rata share of the account toward the appropriate resource maximum, unless the client and the other owner demonstrate that actual ownership of the funds is in a different proportion.
This regulation establishes a harsh default presumption: If your name is on it, you own it.
The impact on eligibility depends entirely on one small word on the bank statement: “or” versus “and.” If an account is titled with “or,” the applicant has “unrestricted access” to the funds. Under the law, 100% of the balance is counted as a resource for the Medicaid applicant. It doesn’t matter if the non-Medicaid applicant deposited every cent of that money. Medicaid assumes the entire balance belongs to the person applying for benefits. If the account is an “and” account that requires both signatures for a withdrawal, Medicaid typically counts a pro rata share (usually 50/50) toward the applicant’s resource limit. While this is slightly better than the “or” scenario, it still places the burden of proof on you to show that the ownership should be divided differently.
With Medicaid resource limits being extremely low, ranging from $2,000 to $6,000 depending on the program and marital status, counting accounts with funds that really don’t belong to the Medicaid applicant can present a real problem.
Can You Fight the Presumption?
Whether the account it titled “and” or “or,” the County social services agency reviewing the Medicaid application will not simply take your word for it. To prove the money doesn’t belong to the applicant, you must provide clear documentary evidence that proves the applicant does not own the money. This includes copies of checks and deposit slips showing where the funds originated as well as a detailed paper trail of how the money was spent. If you can show that all the money coming in and out belonged to and was spent on the non-applicant you may be able to convince the County case handler to disregard the account. Even with solid evidence the County social services agency reviewing the application may still take a hard stance, count the funds toward the resource limit, and deny the application. In sum - rebutting these claims is most often an uphill battle. Absent clear proof, the County will count the funds against the applicant.
The Better Way: Power of Attorney
A joint bank account is not an asset-protection strategy and not a good way to manage an aging or disabled individual’s money. If the goal is to help a loved one manage their income and pay bills, the proper tool is a Power of Attorney (POA). A POA allows you to manage the funds without making those funds yours in the eyes of Medicaid. It provides the same convenience without the massive eligibility risk.
The Bottom Line
Adding a name to an account without legal guidance is a common mistake that creates a mountain of paperwork to undo. Effective Medicaid planning requires understanding how New Jersey actually applies its regulations, rather than relying on assumptions.
by Jose D. Roman | Jun 24, 2025 | Estate Administration, Estate Planning, Last Will and Testament, Power of Attorney, Probate
The Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) was enacted in New Jersey to provide clarity and structure for fiduciaries seeking access to a decedent’s or incapacitated person’s digital assets. The law balances the privacy expectations of individuals with the practical needs of estate and trust administration.
Key Definitions
- Digital Asset: An electronic record in which an individual has a right or interest, such as email accounts, social media profiles, cryptocurrency, or cloud-stored files.
- Fiduciary: A person authorized to act on behalf of another, including:
- Executor or administrator of an estate
- Agent under a power of attorney
- Trustee
- Court-appointed guardian
- Custodian: A person or business that stores digital assets (e.g., Google, Meta, Apple).
Fiduciary Access Categories
RUFADAA applies to four types of fiduciaries:
- Personal Representatives (Executors/Administrators) – May access the digital assets of a deceased individual.
- Agents under a Power of Attorney – May manage digital assets during the principal’s lifetime, if specifically authorized.
- Trustees – May access digital assets titled in the name of the trust.
- Court-Appointed Guardians – May access digital assets with court approval.
Hierarchy of Access Authorization
RUFADAA establishes a three-tiered system to determine fiduciary authority:
1. Online Tools
If the digital service provider (such as Google or Facebook) offers a tool for account holders to direct post-death access (e.g., Google’s Inactive Account Manager or Facebook’s Legacy Contact), that direction overrides any conflicting instructions in a will, trust, or power of attorney.
2. Legal Documents
If no online tool exists or is used, instructions provided in estate planning documents control. These documents must specifically authorize access to digital assets; general powers are not sufficient.
3. Terms of Service Agreements (TOSAs)
If neither an online tool nor legal documents address the issue, the service provider’s Terms of Service Agreement governs access. Most TOSAs restrict access to authorized users only.
Scope of Access
Fiduciaries may seek access to:
- Content: The actual substance of communications (e.g., emails, messages), which requires explicit authorization.
- Catalog Information: Metadata such as sender, recipient, and timestamps, which may be accessible with broader authority.
Service providers may limit access to catalog information if content access is not authorized.
Steps for Fiduciaries to Request Access
Fiduciaries must usually provide the custodian with:
- A written request for access;
- A certified copy of the death certificate (for estates);
- Documentation of fiduciary authority (e.g., letters testamentary, power of attorney, or court order); and
- A copy of the will, trust, or other document granting digital access rights.
In some cases, custodians may require a court order to release certain information.
Custodian Protections
- Custodians are not liable for acts done in good faith under RUFADAA.
- They are permitted to request additional documentation or a court order.
- Custodians may limit access to specific portions of data or provide it in alternative formats.
User Privacy and Federal Law Compliance
- If the account holder prohibited disclosure via legal documents or online tools, fiduciaries cannot override that instruction.
- RUFADAA does not override federal privacy laws, such as the Stored Communications Act or the Computer Fraud and Abuse Act.
Practical Takeaways for New Jersey Residents
- Estate planning documents should expressly authorize access to digital assets.
- Individuals should consider using online tools offered by service providers to designate account access.
- To avoid confusion and uncertainty, make sure there is no conflict between estate planning documents and online tools offered by service providers
- Appointing a digital executor or agent can help ensure smooth management of online accounts.
- Without proper planning, loved ones may be unable to access essential financial or personal information stored digitally.
by Jose D. Roman | Jun 17, 2025 | Estate Administration, Estate Planning, Last Will and Testament, Power of Attorney
In today’s world, estate planning isn’t just about physical property or bank accounts. Increasingly, individuals are amassing significant digital assets—social media accounts, cryptocurrency, online business platforms, cloud storage, digital photos, frequent flyer miles, and more. If you’re a New Jersey resident, planning for these assets is not only prudent but essential. Without a clear plan, your digital legacy could be lost, inaccessible, or mismanaged after death.
What Are Digital Assets?
Digital assets include any online account or digital file that you own or control. This could be:
- Financial accounts like PayPal, Venmo, cryptocurrency wallets, and investment apps
- Social media and email (Facebook, Instagram, Gmail)
- Subscriptions (Netflix, Dropbox, Amazon)
- Online businesses or monetized content on platforms like Etsy, YouTube, or Substack
- Intellectual property such as domain names, eBooks, or digital art stored online
New Jersey and the Revised Uniform Fiduciary Access to Digital Assets Act
New Jersey has adopted Revised Uniform Fiduciary Access to Digital Assets Act(RUFADAA), a law that governs how fiduciaries (like executors of a will or agents under a power of attorney) can access your digital assets. Under RUFADAA:
- You can authorize or restrict access to digital assets via a will, trust, or power of attorney.
- If no specific authorization exists, the service provider’s Terms of Service Agreement usually controls access.
- Some platforms allow you to name a “legacy contact” (Facebook for example) or designate what happens to your data after death (Google Inactive Account Manager).
Why You Need a Digital Estate Plan
Without proper planning, loved ones may not be able to access essential financial records or sentimental content. Worse, your identity or business could be compromised if unattended digital accounts remain open.
A digital estate plan ensures:
- Access to critical financial information
- Protection of sensitive personal data
- A clear path for digital legacies or online businesses
- Fulfillment of your final wishes, including digital memorials or deletions
Steps to Include Digital Assets in Your Estate Plan
- Inventory your digital assets. List your accounts, usernames, and approximate value or importance.
- Choose an agent. Name someone you trust to handle these assets—this can be part of your will or separate, depending on complexity.
- Document access. Store passwords securely using a password manager and include instructions in a secure letter of instruction or digital vault.
- Provide legal authorization. Update your estate planning documents to explicitly authorize access to digital assets in accordance with RUFADAA.
- Review terms of service. For major accounts, check if the provider allows you to set legacy preferences.
A Final Word
In New Jersey, failing to address your digital assets in your estate plan can create legal uncertainty and emotional stress for your loved ones. As technology continues to evolve, so too must our approach to estate planning. If you’re unsure where to begin, consult an estate planning attorney who understands the unique challenges and opportunities posed by digital assets.
by Jose D. Roman | May 21, 2025 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate
If you inherit a house in New Jersey with someone else and you disagree on whether it should be sold, the situation will likely fall under property law and co-ownership rules. Here’s an overview of your options:
1. Try to Negotiate or Reach an Agreement
- Discuss the situation with the co-owner to try and reach a compromise. This could involve buying out the other person’s share, agreeing to rent the property, or setting terms for its sale.
- Mediation with a neutral third party can help if direct negotiation isn't successful.
2. Partition Action (Court Involvement)
- If you cannot agree, either party can file a lawsuit for partition in the Superior Court of New Jersey.
- A partition action can result in one of two outcomes:
- Partition by Sale: The court orders the property to be sold, and the proceeds are divided between the co-owners according to their ownership shares.
- Partition in Kind: If feasible, the court physically divides the property. However, this is rare for residential properties because splitting a house isn’t practical.
- Legal costs will be involved, and the court's decision is binding.
3. One Party Buys Out the Other
- If one person wants to keep the house, they could offer to buy out the other’s share. An appraisal may be needed to determine the home's fair market value.
- This option avoids the costs and delays of a court proceeding.
4. Co-Ownership Agreement
- If you and the co-owner can reach a temporary agreement, you might create a written contract outlining how the property will be managed, sold, or divided in the future.
5. Sale Through Agreement
- If both parties ultimately agree to sell, you can jointly list the house for sale and split the proceeds according to your ownership percentages.
Key Considerations:
- Legal Counsel: It’s advisable to consult a attorney experienced in New Jersey law. They can guide you through negotiations, prepare documents, or represent you in court if necessary.
- Costs: If the matter goes to court, both parties may incur legal and court fees.
- Time: A partition action can take months or even years to resolve.
- Property Expenses: Until the matter is resolved, co-owners are typically jointly responsible for property taxes, mortgage payments (if applicable), and upkeep.
by Jose D. Roman | Feb 12, 2025 | Estate Planning, Legal Bulletin, Power of Attorney
Recently it was reported that an Asbury Park resident was detained by ICE after dropping his child off at school. Situations like this raise the question of who will care for the child if the parent remains in custody or is deported. Will someone be appointed guardian? Navigating New Jersey’s guardianship laws can be daunting, especially when a parent is temporarily unable to care for their child. Fortunately, N.J.S.A. 3B:12-39 provides a practical, court-free solution: it allows parents and legal guardians to delegate parental authority through a properly executed Power of Attorney. This flexibility is a lifeline for families, particularly immigrant parents who face the ever-present risk of detention, removal, or deportation in today’s unpredictable socio-political climate.
A Modern Solution for Modern Challenges
Under N.J.S.A. 3B:12-39, parents, custodians, or guardians can delegate their authority over a minor child’s care, custody, or property to a trusted individual. The delegation can take effect immediately or upon the occurrence of a specific “activating event.” The statute explicitly identifies several such events, including:
- A determination by the parent’s, custodian’s, or guardian’s attending physician that they are incapacitated or debilitated.
- Immigration administrative action, such as detention, removal, or deportation, which may separate a parent from their child.
- Criminal proceedings.
- Military service.
This streamlined process empowers families to plan ahead, avoiding the delays, costs, and complexities of court-appointed guardianship.
Why This Law is a Game-Changer for Immigrant Families
For immigrant parents, the fear of sudden detention or deportation can cast a long shadow over their ability to care for their children. In a political landscape where immigration policies are constantly in flux, this law provides a critical safety net. By including “immigration administrative action” as an activating event, N.J.S.A. 3B:12-39 directly addresses the unique challenges immigrant families face, offering several key advantages:
- Proactive Planning: Parents can execute a Power of Attorney in advance, designating a trusted individual to step in if an immigration action occurs.
- Avoiding Traumatic Placements: With a delegation in place, children are less likely to end up in temporary group settings and can remain with someone the family knows and trusts.
- Preserving Parental Rights: Even after delegating authority, parents retain the right to revoke the Power of Attorney or resume decision-making when circumstances allow.
- Peace of Mind: Knowing that a legal framework exists to protect their children allows immigrant parents to face their challenges with greater confidence.
This legal tool ensures that children continue to receive the care and stability they deserve, even in the face of immigration-related disruptions.
Practical Steps for Parents and Guardians
If you’re considering delegating parental authority under N.J.S.A. 3B:12-39, here are some key steps to keep in mind:
- Free Forms v. Paying a Lawyer: While it is always best to consult an experienced lawyer, there are free forms available. In fact, the text of the law itself actually provides a form you can use. If you can’t afford an attorney you should stick with the language from N.J.S.A. 3B:12-39 or use forms published by trusted sources such as local law school legal clinics or government websites. Here is a form from Rutgers Law School, along with an FAQ to answer common questions. Here is a form published by the New Jersey Department of Children and Families.
- Tailor the Power of Attorney: The document should clearly outline the scope of delegated powers and specify which activating events will trigger the delegation (including immigration-related issues).
- Address Consent Requirements: Obtain the consent of both parents or explain why the other parent is unable to provide consent (deceased, incapacitated, whereabouts unknown, etc.). This is outlined in the law and should be addressed in the form.
- Execute Properly: New Jersey requires a Power of Attorney to be notarized. However, it is recommended that you execute the document before two witnesses and a notary.
- Understand Renewal and Revocation: Be aware that the delegation expires after one year (with possible extensions under exigent circumstances). It can also be revoked by you at any time.
By taking these steps, parents can create a safety net for their families, ensuring stability even in the most uncertain times.
Final Thoughts
The Minor/Parental Power of Attorney under N.J.S.A. 3B:12-39 is a testament to New Jersey’s commitment to protecting families in crisis. By allowing parents to delegate parental authority without court intervention, the law provides a practical, compassionate solution for families facing emergencies. For immigrant parents, who often bear the brunt of shifting immigration policies, this legal mechanism is more than just a tool—it’s a vital safeguard for their children’s well-being.
by Jose D. Roman | Feb 10, 2025 | Estate Planning, Guardianship, Power of Attorney
A Springing Power of Attorneyis a legal document that allows someone you appoint as your agent to manage your financial affairs, but only when a specific condition is met—typically, your incapacitation. Unlike a typical Power of Attorney, which takes effect upon signing, a Springing Power of Attorney “springs” to life when you (“the principal”) become unable to handle your own financial matters.
How to Create a Springing Power of Attorney in New Jersey
To create a valid Springing Power of Attorney in New Jersey, be mindful of the following:
- State Clearly that it is Springing: The Power of Attorney should clearly state that it is springing and specify the triggering event, usually incapacitation. The document should also outline how incapacity is determined. In New Jersey, this often requires written certification from two licensed physicians confirming that the principal is unable to manage their affairs.
- Appoint a Trusted Agent: Choose a responsible individual who will act in the your best interest and handle your financial matters effectively.
- Choose Alternates: It is highly recommended that you choose alternate agents in case your first choice is unwilling or unavailable to serve.
- Include Specific Powers: The document should explicitly list the powers granted to the agent, as powers not listed are often not recognized, especially by banks and other financial institutions.
- Meet Legal Requirements: New Jersey law requires the Power of Attorney to be signed before a notary public or an attorney. Because other states may require two witnesses as well, it is recommended that you also sign it before two witnesses. Any person you are designating as an agent should not serve as a witness.
- Distribute Copies: Provide copies to the appointed agent, financial institutions, and any relevant parties who may need to recognize the Power of Attorney when the time comes. Keep the original in a safe place that is accessible by your agent.
Why Choose a Springing Power of Attorney?
A Springing Power of Attorney offers additional protections over an immediate Power of Attorney. Reasons people may choose a Springing Power of Attorney often include:
- Discomfort with Relinquishing Control: Since the agent’s authority only activates upon incapacity, the principal retains sole control of their financial affairs while competent. With an immediate Power of Attorney, your agent may act right away, which may not be desirable if you are uncomfortable with the idea of an immediate Power of Attorney.
- No Close Relatives or Friends Available: Individuals often appoint their spouse, children or a close friend as agent. If you don’t anyone close to you who can serve as your agent, you may want to opt for a Springing Power of Attorney.
- Trust Issues: Perhaps you don’t completely trust your designated agent but still want to appoint the person in case something happens to you. A Springing Power of Attorney may be the appropriate solution in these circumstances.
Ultimately, aSpringing Power of Attorney provides a safeguard against financial mismanagement, as no one can act on the principal’s behalf unless they truly become incapacitated. However, there are potential downsides. Proving incapacity can be challenging, as physicians may be hesitant to certify incompetency, and financial institutions may require additional proof before recognizing the agent’s authority. After all one of the purposes of having a Power of Attorney is to make your life and your loved one’s lives easier often during a difficult time. A Springing Power of Attorney may add extra hurdles and stress.
When Does a Springing Power of Attorney Go Into Effect?
A Springing Power of Attorney becomes effective upon the happening of a condition specified in the document -- most commonly when the principal is deemed incapacitated. Typically, this means:
- Two physicians certify in writing that the principal is mentally or physically unable to manage their own affairs.
- The agent presents these certifications along with the Power of Attorney document to banks and financial institutions.
- The entity accepting the Power of Attorney determines that the incapacity provisions have been satisfied.
Because banks and other financial institutions may have their own standards for verifying incapacity, the agent might face hurdles in getting the Power of Attorney recognized. To avoid complications, you should inquire about any such issues with your financial institutions ahead of time and consider opting for an immediate Power of Attorney.
Is a Springing Power of Attorney Different from a Durable Power of Attorney?
No is the short answer. A Durable Power of Attorney remains valid even after the principal becomes incapacitated. However, a Durable Power of Attorney can be either immediate (effective upon signing) or springing (effective upon incapacity). All springing Powers of Attorney must be durable; otherwise, they would become invalid when the principal loses capacity, defeating their purpose.
Conclusion
A Springing Power of Attorney in New Jersey can be a valuable tool for those who wish to retain sole control over their finances while they are capable but ensure that someone can manage their affairs if needed. When drafting a Springing Power of Attorney, it is crucial to carefully define the terms of incapacity and ensure that the document meets all legal requirements to avoid delays or challenges in enforcement. Consulting an estate planning attorney can help tailor a Power of Attorney to fit individual needs and ensure it aligns with New Jersey law.