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.
by Jose D. Roman | Feb 6, 2025 | Estate Planning, Power of Attorney
The Social Security Representative Payee Program serves as an essential safeguard for individuals who receive Social Security benefits but are unable to manage their own finances due to disability, cognitive impairments, or aging-related challenges. This program is particularly important for young people with special needs or intellectual disabilities, as well as seniors who require assistance with their finances. Let’s explore how the program works, how a representative payee is appointed, and their responsibilities.
The Role of a Representative Payee
A representative payee is a person or organization appointed by the Social Security Administration (SSA) to manage Social Security or Supplemental Security Income (SSI) payments on behalf of a beneficiary who cannot do so themselves. The payee ensures that the funds are used for the beneficiary’s essential needs, such as housing, food, medical care, and personal expenses.
Why Power of Attorney is Not Accepted by the SSA
Unlike other financial institutions, the SSA does not recognize Powers of Attorney (POA) for managing Social Security benefits. Even if a person has a legally executed Power of Attorney, they must still apply and be approved as a representative payee to manage Social Security benefits on behalf of someone else. This distinction is critical because the SSA maintains strict oversight of how benefits are used to protect beneficiaries from potential financial exploitation.
How a Representative Payee is Appointed
The process of appointing a representative payee begins when the SSA determines that a beneficiary is incapable of managing their benefits. This can occur through medical evidence, reports from caregivers, or statements from the beneficiary themselves. If the SSA decides a payee is needed, they prioritize individuals in the following order:
- A legal guardian or custodian
- A close family member (spouse, parent, or adult child)
- A friend or other interested party
- An organization, such as a social service agency or nonprofit
The individual or entity seeking to become a representative payee must complete Form SSA-11 (Request to Be Selected as Payee) and provide supporting documentation. The SSA may also require an in-person interview to assess the applicant’s suitability.
Responsibilities of a Representative Payee
Once appointed, a representative payee has several crucial responsibilities:
- Managing Benefits Properly: The payee must ensure that the Social Security or SSI benefits are used for the beneficiary’s current and foreseeable needs, such as rent, food, medical expenses, and personal care.
- Budgeting and Financial Planning: Any remaining funds after covering essential expenses should be saved for the beneficiary’s future needs, ideally in an interest-bearing account.
- Preventing Misuse: The payee must never use the funds for personal expenses or any purpose that does not directly benefit the beneficiary.
- Reporting to the SSA: The payee must inform the SSA of any changes in the beneficiary’s circumstances, such as changes in living arrangements, work status, or medical conditions that may affect eligibility.
- Submitting Annual Reports: In many cases, a representative payee is required to submit an annual accounting report detailing how the benefits were spent or saved. This ensures transparency and accountability.
Managing the Beneficiary’s Money
A representative payee must keep the beneficiary’s funds separate from their own, preferably in a dedicated checking or savings account. The account should be titled to reflect the fiduciary role, such as “[Beneficiary’s Name] by [Payee’s Name], Representative Payee.” This prevents commingling of funds and ensures proper tracking of expenditures.
Final Thoughts
The Social Security Representative Payee Program provides critical financial management support for individuals who need assistance handling their benefits. Because the SSA does not recognize Powers of Attorney, it is essential to follow the proper procedures to become a representative payee. By understanding the appointment process, responsibilities, and financial management rules, representative payees can help ensure that vulnerable individuals receive the financial stability they need to lead secure and dignified lives.
by Jose D. Roman | Nov 13, 2024 | Estate Planning, Power of Attorney
A durable Power of Attorney is an essential legal document that grants a trusted individual (the “agent” or “attorney-in-fact”) authority to act on your behalf (the “principal”) in managing financial, legal, or healthcare decisions. A “durable” Power of Attorney is one that remains valid even if you become incapacitated.
It is important to have a Power of Attorney in place because everyone in New Jersey is presumed to be in charge of their own decision making as soon as they reach the age of 18 (the age of majority). Having a Power of Attorney in place will ensure that someone can act on your behalf in the event you ever become incapacitated. Since we never know when we might be incapacitated – even temporarily due to an accident – there is no good reason to wait to obtain your Power of Attorney.
The law regarding adult decision making applies to everyone. It even applies to individuals with intellectual disabilities, whose parents are often surprised to learn that they no longer have the legal authority to make decisions for their child as soon as they reach their 18th birthday. Parents in that situation cannot have their child sign a Power of Attorney and need to apply to the court to become appointed guardian. However, guardianship is a topic for another day.
What Is a Durable Power of Attorney?
A Power of Attorney allows the agent to make decisions and handle affairs for the principal in specific or broad areas, depending on how the document is drafted. Common powers granted under a Power of Attorney include:
- Managing bank accounts and investments,
- Paying bills and handling debts,
- Buying or selling property,
- Filing taxes,
- Making healthcare decisions (if included in the scope of authority).
The document’s durability means it remains valid even if the principal loses the capacity to make decisions due to illness, injury, or other circumstances.
Why Is Having a Durable Power of Attorney Important?
Without a Power of Attorney, your loved ones may face significant legal and financial challenges if you become incapacitated. They may need to petition a court to appoint a guardian or conservator, which can be time-consuming, costly, and emotionally draining. A Power of Attorney ensures:
- Continuity in managing your financial and legal affairs,
- Avoidance of court intervention,
- You get to choose someone you trust to act in your best interests.
In addition to financial matters, a Power of Attorney can include provisions for healthcare decisions, ensuring that your medical preferences are respected even if you cannot communicate them. However, this is often included in a separate documents such as a Healthcare Proxy, Advance Directive, or Living Will.
How to Create a Durable Power of Attorney in New Jersey
Creating a Power of Attorney in New Jersey involves several steps to ensure it is legally valid and tailored to your needs:
- Choose a Trusted Agent Select someone you trust implicitly, such as a family member, close friend, or professional advisor. Your agent should be reliable, organized, and capable of managing the responsibilities assigned to them.
- Determine the Scope of Authority Decide whether the Power of Attorney will grant broad or limited powers. For example, you may authorize your agent to handle all financial matters or restrict their authority to specific tasks, such as managing a single bank account.
- Draft the Document Work with an attorney familiar with New Jersey law to draft the Power of Attorney. While templates are available online, consulting an attorney ensures the document complies with state-specific requirements and addresses your unique needs.
- Sign the Document In New Jersey, a Power of Attorney must be signed by the principal in the presence of a notary public. Additionally, it’s recommended to have two witnesses present to strengthen the document’s validity, especially if you anticipate that it will be used out of state.
- Make Copies Accessible Provide copies of the Power of Attorney to your agent and any relevant institutions, such as banks or healthcare providers. Keep the original in a safe, accessible location and inform your agent where to find it.
- Review and Update Periodically Life circumstances change, so it’s important to review and update your Power of Attorney as needed, especially after major events like marriage, divorce, or the death of your chosen agent.
Key Considerations for New Jersey Residents
- Statutory Requirements: New Jersey law requires that a Power of Attorney document clearly state the principal’s intention for it to remain effective upon incapacity.
- Financial Institutions: Some banks and financial institutions in New Jersey may require additional documentation or their own forms, even with a valid Power of Attorney.
- Revocation: You can revoke a Power of Attorney at any time as long as you have the mental capacity to do so. In order to revoke the document you must inform your agent and any institutions of the revocation in writing.
Final Thoughts
A durable Power of Attorney is a powerful tool for ensuring your affairs are managed by someone you trust if you become unable to do so. By taking the time to create a Power of Attorney, you can protect yourself and your loved ones from unnecessary stress and uncertainty. If you’re ready to establish a durable Power of Attorney in New Jersey, consult with a qualified attorney to guide you through the process and ensure your wishes are legally documented.