Powers of Attorney and Advance Directives

Why These Documents Matter

A few times a year we get a call from someone whose parent has just had a stroke, or a fall, or a diagnosis that came faster than anyone expected. The mortgage is due. The insurance company wants a signature. The hospital is asking who gets to decide. And nobody has the legal authority to do anything.

At that point there is nothing we can draft. A power of attorney requires capacity, and once capacity is gone the only path left is a guardianship: a court proceeding with physician certifications, a court-appointed lawyer for the person who is incapacitated, a hearing, and ongoing reporting to the judge. It is public. It gets ugly when family members disagree. And it costs many times what the planning would have cost.

Two documents, signed while you are healthy, avoid nearly all of that. This page explains both.

The Financial Power of Attorney

A durable power of attorney names an agent to handle your financial and legal affairs. “Durable” means the authority continues if you become incapacitated instead of ending at exactly the moment you need it. That one word separates a useful document from a useless one.

New Jersey is relatively flexible about form. A properly signed durable power of attorney works according to its own terms, and the statute tells banks what their obligations are when one is presented. New York is much more particular. It has a statutory short form with specific execution requirements, including signatures from the principal and each agent (not necessarily at the same time) and witnesses. A 2021 reform loosened the old rule that the form had to match the statute word for word, added remedies against third parties who unreasonably refuse to honor a valid power, and allowed a person with a physical disability to direct someone else to sign for them. Older New York powers of attorney are often still valid, but banks are increasingly reluctant to accept them.

The decisions that actually matter when we draft one:

Scope. A general grant covers most things but not everything. In New York, the authority to make gifts, change beneficiaries, or create or amend a trust has to be granted expressly in the modifications section. It is never implied. In New Jersey, gifting authority should likewise be spelled out. This matters more than it sounds. An agent who cannot make gifts cannot do Medicaid planning, which is often the whole reason the document is needed.

Springing versus immediate. A power that only takes effect once a doctor certifies incapacity sounds cautious. In practice it often works badly, because the certification itself becomes the fight. We generally prefer an immediately effective power held by someone you trust completely, and we will talk honestly with you about whether you have such a person.

Successors. Name them. Agents die first, decline the job, move across the country, or turn out to be the problem.

Co-agents. If you name two, decide whether they must act together or can act separately. Requiring both signatures protects against one bad actor. It also guarantees paralysis if they stop speaking to each other.

Health Care Decisions

New Jersey uses an advance directive for health care. It can combine a proxy directive, which names a health care representative, with an instruction directive, the living will, which spells out your wishes about life-sustaining treatment, artificial nutrition and hydration, and when you would want treatment withheld.

New York splits these up. A health care proxy names an agent under the Public Health Law. New York has no living will statute. Instead, its highest court has required clear and convincing evidence of the patient’s own wishes before life support can be withdrawn. That makes a written statement of your wishes more important in New York, not less, because it is the evidence your agent will point to. If you never appointed an agent, New York’s Family Health Care Decisions Act supplies a list of surrogates, but that is a fallback and not a substitute.

Both states also allow separate documents for organ donation and, in the right clinical setting, orders about resuscitation.

A HIPAA authorization should be signed alongside all of this. An agent who has authority to make medical decisions but no right to see the medical records is being asked to decide blind.

The Conversation

We do not draft these from a form and a name. We ask who your agent really is, whether your family will accept the choice, whether the person lives close enough to actually show up, and whether there is a sibling who is going to fight about it. We ask what you would want if the prognosis were bad but not hopeless. Most people have never said that answer out loud. The document is only as good as the thinking behind it.

We also ask about digital assets. Both New Jersey and New York have adopted versions of the Revised Uniform Fiduciary Access to Digital Assets Act, and getting into someone’s email, cloud storage, and online accounts now requires express authorization that older documents do not have.

Get These Done

These are inexpensive documents that prevent expensive problems. There is no good reason to be without them.

Call (201) 431-6199 or email info@wenstrandlaw.com. Offices in Cranford, New Jersey and on Madison Avenue in Manhattan.