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.