Power of attorney, health care directive and guardianship in New Jersey

Financial power of attorney in New Jersey

Law and official form

Law

Revised Durable Power of Attorney Act

Uniform Power of Attorney Act

No

Law: N.J.S.A. 46:2B-8.1 (P.L.2000, c.109)

Signing rules

How to sign

A power of attorney must be in writing, signed, and acknowledged before an officer authorized to take acknowledgments, such as a notary public or a New Jersey attorney at law (also a county clerk, register of deeds or surrogate). Acknowledgment can also be made by communication technology under the state's remote notarization law. No witnesses are required by the act.

Who signs

Signed by you (the principal), in writing.

Notary

Required

Witnesses

None required

Electronic signing

An acknowledgment may be taken by an officer using communication technology under P.L.2021, c.179.

Law: N.J.S.A. 46:14-2.1(a); 52:7-10.10

Law: N.J.S.A. 46:2B-8.9; N.J.S.A. 46:14-2.1; N.J.S.A. 46:14-6.1

Durable and springing

Is it durable?

A power of attorney is durable only if it says so, with words such as 'this power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time' or 'this power of attorney shall become effective upon the disability or incapacity of the principal', or similar words.

Law: N.J.S.A. 46:2B-8.2(b)

Durable unless it says otherwise?

No: it continues after incapacity only if it says so.

Starting later (springing)

A durable power of attorney can say it becomes effective upon your disability or incapacity. Unless the document defines it, you are 'under a disability' if you are unable to manage your property and affairs effectively. The act does not set a procedure for proving incapacity.

Law: N.J.S.A. 46:2B-8.2(b)-(c)

What an agent can and cannot do

Needs express permission

• Give your property away (gifts) to the attorney-in-fact or to others; general 'all acts' wording does not authorize gifts
• Delegate powers to other agents

Law: N.J.S.A. 46:2B-8.13a (gifts); N.J.S.A. 46:2B-8.8 (delegation only if the power of attorney specifically provides)

Agent duties, pay and court review

Agent duties

• Act as a fiduciary, within the powers given and solely for your benefit
• Keep accurate books and records of all financial transactions
• Give an accounting when you, your guardian or conservator, or your estate's personal representative asks

Agent pay

You decide in the power of attorney or a separate written agreement whether and how the attorney-in-fact is paid. If you say nothing, a court may award reasonable compensation on application.

Law: N.J.S.A. 46:2B-8.12

Asking a court to review an agent

You, your guardian or conservator, and your estate's personal representative can require the attorney-in-fact to account. The Superior Court may order an accounting at the request of any heir or other 'next friend' if satisfied you are incapacitated and there is concern the attorney-in-fact is not acting within the powers or solely for your benefit.

Law: N.J.S.A. 46:2B-8.13(b)

Law: N.J.S.A. 46:2B-8.13

When it ends and how to revoke it

It ends when

• You die (people acting in good faith without knowledge of your death are protected)
• You become disabled or incapacitated, if the power of attorney is not durable
• You revoke it
• A time of termination stated in the document arrives
• You divorce or annul your marriage to your attorney-in-fact, unless the power of attorney, a court order or a marital agreement says otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in New Jersey (Divorce Law Map)

How to revoke

A power of attorney is revoked when you (1) have all signed originals physically destroyed, (2) sign and acknowledge (before a notary or other authorized officer) a written revocation, or (3) deliver a written revocation to your attorney-in-fact. Signing a new power of attorney does not revoke an older one unless it says so. While you are alive, no one else can revoke your durable power of attorney except by court order for good cause.

Telling others

Third parties may rely on a durable power of attorney until they receive actual notice of the revocation, so give written notice to banks and others who have it. A bank must refuse to act once the employee handling it has actual notice of the revocation.

Law: N.J.S.A. 46:2B-8.2(b), 46:2B-8.3, 46:2B-8.5, 46:2B-8.10; N.J.S.A. 3B:3-14(a)(1)(c) and 3B:1-1 ('governing instrument' includes a power of attorney); N.J.S.A. 46:2B-8.10, 46:2B-8.4(c), 46:2B-8.6, 46:2B-13

Banks, other states and real estate

Banks and other businesses

Any third party may rely on a durable power of attorney until it receives actual notice of revocation, termination or your death, and may ask the attorney-in-fact for an affidavit that they had no knowledge of termination; that affidavit is conclusive proof. For banking transactions, a bank must accept and rely on a power of attorney that conforms to the banking power of attorney law, except in listed cases; it has a reasonable time to decide and must tell the agent in writing why it refuses if given an address. A third party may keep a photocopy or certified copy.

Law: N.J.S.A. 46:2B-8.6; N.J.S.A. 46:2B-13; N.J.S.A. 46:2B-8.11

Health care directive in New Jersey

The document and its form

Document

Advance directive for health care (proxy directive and/or instruction directive)

Official form

Proxy Directive (Durable Power of Attorney for Health Care) and Instruction Directive (Living Will)Published by New Jersey Department of Health (forms developed by the New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care)Version: No revision date printed on the forms

You do not have to use it.

Living will

Instruction directive (living will)

The living will is a separate document.

An instruction directive states your general treatment philosophy and goals and/or your specific wishes about providing, withholding or withdrawing any health care, including life-sustaining treatment. It can be separate from or attached to a proxy directive and is signed under the same rules.

Living will

Law: N.J.S.A. 26:2H-56, 26:2H-58; N.J.S.A. 26:2H-58(b)

Signing rules

How to sign

Sign and date the advance directive either in front of two adult witnesses who also sign, or acknowledge it before a notary public, an attorney at law, or another person authorized to administer oaths. You may add a video or audio recording.

Who signs

Signed and dated by you, or by someone at your direction.

Notary

A notary or witnesses (your choice)

Witnesses

2 (instead of a notary)

Who cannot witness

Two adult witnesses must sign and attest that you are of sound mind and free of duress and undue influence. The health care representative you name cannot be a witness.

Law: N.J.S.A. 26:2H-56

Who can be your agent and what the agent can do

Who cannot be your agent

Any adult with mental capacity can be your health care representative. An operator, administrator or employee of a health care institution where you are a patient or resident cannot serve unless related to you by blood, marriage, domestic partnership, civil union or adoption; this does not bar a physician who is not also your attending physician.

Law: N.J.S.A. 26:2H-58(a)

When the agent starts

The advance directive becomes operative when it is given to your attending physician or health care institution and it is determined that you lack capacity to make a particular decision. The attending physician must put that finding in writing, and another physician must confirm it unless your incapacity is clearly apparent and the physician and representative agree confirmation is unnecessary. If you regain capacity for a decision, you make it yourself.

Law: N.J.S.A. 26:2H-59, 26:2H-60, 26:2H-63(b)

Decisions an agent cannot make

The health care representative must make the decision you would have made, or, if your wishes cannot be determined, decide in your best interests, giving priority to your instruction directive. If you clearly express a current wish that life-sustaining measures be provided, that wish overrides the representative and your instruction directive. You must state any limits on the representative's authority, including any for pregnancy.

Law: N.J.S.A. 26:2H-58(a)(5), 26:2H-61(f), 26:2H-63

Revoking and conflicting documents

Revoking your agent

You can revoke a proxy directive by telling your health care representative, physician, nurse, other health care professional or another reliable witness, orally or in writing, or by any other act showing intent to revoke, or by signing a new directive.

Revoking your instructions

An instruction directive is revoked the same ways. A patient who lacks capacity can suspend (not revoke) a directive by the same means and later reinstate it.

Telling others

A revocation or suspension takes effect when communicated to anyone who can pass it on, such as your health care representative, attending physician, nurse or other health care professional.

Divorce ends a spouse's authority

Yes · Divorce rules in New Jersey (Divorce Law Map)

Law: N.J.S.A. 26:2H-57

If you have no directive

Who decides without a directive

New Jersey's advance directive law does not set a priority list of family members who may decide for an adult who has no advance directive and no guardian.

Other states, registry and medical orders

Signed in another state

An advance directive made under another state's law and valid there (or valid under New Jersey law) is valid in New Jersey. One made in a foreign country is valid if it complies with that country's law or New Jersey's and is not contrary to New Jersey public policy.

Law: N.J.S.A. 26:2H-76

POLST (medical orders)

Practitioner Orders for Life-Sustaining Treatment (POLST)

Official page

Mental health directive

Under the Advance Directives for Mental Health Care Act you can make a separate advance directive for mental health care, signed and dated in front of at least one adult witness. Your mental health care representative and your treating mental health professional cannot witness. A relative, someone who lives with you, a person who would inherit from you, or a staff member of a boarding house or residential health care facility where you live cannot be the only witness (N.J.S.A. 26:2H-102 to 26:2H-119; 26:2H-105).

Law: N.J.S.A. 26:2H-129 to 26:2H-140 (Practitioner Orders for Life-Sustaining Treatment Act)

Guardianship and conservatorship in New Jersey

What guardianship or conservatorship is

What it is called

General guardian or limited guardian of the person, of the estate, or of both; pendente lite temporary guardian

When a court may appoint one

An incapacitated individual is one impaired by mental illness or intellectual disability so that they lack sufficient capacity to govern themselves and manage their affairs. If the person lacks capacity for some but not all tasks, the court may appoint a limited guardian and must make specific findings about the areas (such as residential, medical, legal, financial) where the person keeps capacity. A general guardian is appointed if the person is without capacity to govern themselves or manage their affairs. The person must have a lawyer (the court appoints one if needed) and must appear unless unable.

Law: N.J.S.A. 3B:1-2; N.J.S.A. 3B:12-24.1

Kinds

• General guardian
• Limited guardian
• Pendente lite temporary guardian

Law: N.J.S.A. 3B:12-24 to 3B:12-28; N.J.S.A. 3B:1-2

Who can ask, which court and your own choice

Who may ask

A complaint for adjudication of incapacity and appointment of a guardian is filed in the Superior Court under the Rules of Court; the Rules set out who may file.

Law: N.J.S.A. 3B:12-24.1(i)

Court

Superior Court of New Jersey, Chancery Division, Probate Part, in the county where the person lives

Choosing your own

In a durable power of attorney you can nominate a conservator, guardian of your estate or guardian of your person for the court to consider. The court may also consider decision-makers you chose in a durable power of attorney, health care proxy or advance directive.

Law: N.J.S.A. 46:2B-8.4(b); N.J.S.A. 3B:12-25

Effect on a power of attorney

If a conservator or guardian of your estate is appointed, the attorney-in-fact becomes accountable to that fiduciary as well as to you. A health care representative keeps authority to make health care decisions even if a different person is your guardian, unless the guardianship order or another court decree says otherwise.

Law: N.J.S.A. 46:2B-8.4(a); N.J.S.A. 26:2H-61(b)

Cost, fee waiver and forms

Filing fee

$135 fee paid to the county surrogate when the first paper is filed in a Probate Part action. Other surrogate fees, such as for copies and certificates, may apply.

Law: N.J.S.A. 22A:2-15

Steps

Steps

Other options and where to report abuse

Less restrictive options

• Limited guardianship: A guardian with authority only in the areas where the court finds the person lacks capacity; the person keeps decision-making in the other areas.
• Durable power of attorney and advance directive: Documents made while you have capacity naming an attorney-in-fact and a health care representative; the court may consider these choices.

Report abuse or exploitation

County Adult Protective Services offices (New Jersey Division of Aging Services)

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Good to know in New Jersey

• New Jersey has not adopted the Uniform Power of Attorney Act and has no statutory power of attorney form; a power of attorney must be acknowledged before a notary, attorney or other authorized officer.

  Law: N.J.S.A. 46:2B-8.9

• A New Jersey power of attorney is durable only if it says so.

  Law: N.J.S.A. 46:2B-8.2

• A general 'do all acts' clause does not let an attorney-in-fact make gifts; gifts must be expressly and specifically authorized.

  Law: N.J.S.A. 46:2B-8.13a

• Your health care representative keeps authority over health care decisions even if someone else is appointed your guardian, unless the court orders otherwise.

  Law: N.J.S.A. 26:2H-61(b)

Changes in 2024–2026

N.J.S.A. 3B:12-24.1 (guardianship services; limited and temporary guardians) was amended by P.L.2025, c.179.

Questions about powers of attorney in New Jersey