Durable Power of Attorney NJ

Durable Power of Attorney NJ

Who will handle my affairs if I can’t? 

Most people know they should have a will so their estate can be administered and distributed to beneficiaries promptly and efficiently upon their death.

Unfortunately, many people fail to plan adequately for lifetime disability that leaves them unable to legally handle their business, financial and personal affairs.

The durable power of attorney allows you to choose who will be in control of your affairs, should you be unable to act on your own behalf, eliminating the need for the courts to appoint a guardian.

Disability can arise from a number of different causes, such as illness, injury, an accident or old age. If this happens – and you have not executed a durable power of attorney – then the court may decide who will act on your behalf.

Known as guardianship and conservatorship proceedings, these court actions can consume time and money and leave the decision of who will handle your affairs in the hands of a judge.
Even an ordinary power of attorney, which gives a relative, friend or bank the power to act on your behalf, becomes invalid if you become incompetent.

The New Jersey Legislature responded to this problem by creating the “Durable Power of Attorney,” which remains in effect even if you become mentally incapacitated. Having a Durable Power of Attorney can save time, expense and the inconvenience of a court proceeding.

What are some advantages of a Durable Power of Attorney? 

• You – not a judge – select – your agent.
• It can give you and your family some peace of mind knowing that you have named someone to handle your affairs.
• It can save time and the expense of a court proceeding.

What is a power of attorney? 

You, as “principal,” name another individual or an institution (such as a bank) as your “agent” or “attorney-in-fact” to act for you in handling your affairs. The appointment gives them the power, for example, to sign checks and make deposits, pay bills, contract for medical or other professional services, sell property, obtain insurance and do all the things you do in managing your daily affairs.

The authority you give to your agent can be as broad (to do anything you could do) or as narrow (to sell a particular piece of real estate) as you choose to make it. A power of attorney should be in writing, signed by you in the presence of a notary public who witnesses your signature.

This way, your agent can prove he or she has the authority to act for you. The authority you give to your agent can be as broad (to do anything you could do) or as narrow (to sell a particular piece of real estate) as you choose to make it.

A power of attorney should be in writing, signed by you in the presence of a notary public who witnesses your signature. This way, your agent can prove he or she has the authority to act for you.

If you are giving your agent authority to make decisions about real estate you own, then the power of attorney is typically recorded, along with the deed, in the county clerk’s office.

Is a durable power of attorney different? 

Yes. Unlike a simple power of attorney, a durable power of attorney survives even if you become incapacitated and cannot act on your own behalf. It typically contains words like: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or a lapse of time,” or “This power of attorney shall become effective upon the disability or incapacity of the principal.” In order to be valid, it must be signed by you before you become disabled.

Do I need a Durable Power of Attorney even if my spouse and I own everything “jointly?” 

Yes. If you are incapacitated, your spouse can still sign checks and make withdrawals on joint bank accounts, but your spouse cannot sell jointly owned stocks or your jointly owned home without your signature. Your spouse cannot name or change a beneficiary on your life insurance or your retirement benefits. Even if you own everything jointly, you both should consider having Durable Powers of Attorney.

Can I make a Durable Power of Attorney that is effective even while I am still able to handle my own affairs? Isn’t that dangerous? 

Yes, you can create a Durable Power of Attorney that is effective while you are still able to take care of your own affairs. The advantage here is that, should you become incapacitated, your agent does not have to produce medical evidence that you are unable to handle your own affairs.
On the other hand, you are giving your agent a lot of authority and that authority can be abused, even though your agent is obligated to act solely in your best interest. So it is very important that you give this power only to someone you trust completely.

Can I make a Durable Power of Attorney that becomes effective only if I become disabled? 

Yes, you or your lawyer could include a phrase that says something like: “This power of attorney shall become effective upon my disability.” You need to indicate how it will be determined that you are disabled so that when your agent tries to use the power of attorney (say at a bank), your agent will be able to produce evidence that proves your disability.

It’s up to you to decide if you want a Durable Power of Attorney that is presently effective or one that becomes effective only if you become disabled or incapacitated. A knowledgeable attorney can assist you in deciding what type of power of attorney best meets your needs.

Can I revoke a Durable Power of Attorney? 

As long as you have capacity, you can revoke your Durable Power of Attorney. The revocation should be in writing and it should be delivered to the agent and third parties with whom the agent is dealing. While a guardian appointed by the probate court cannot revoke a Durable Power of Attorney, a court may void the Power of Attorney as part of a guardianship order.

Finally, the Durable Power of Attorney terminates at the time of your death, unless there is uncertainty as to whether you are dead or alive. Until a third party has received actual notice of the principal’s death, the third party is not held liable for continuing to rely on the Durable Power of Attorney.

What are some specific authorities that might be given in a Durable Power of Attorney? 

Ordinarily, you want your agent to be able to do anything you could do, and so most Durable Powers of Attorney are very broad. Specifically, a durable power of attorney might authorize your agent to do any or all of the following on your behalf:

• Pay for support and care
• Borrow
• Conduct banking transactions
• Buy, sell or manage property
• Handle legal claims
• Gain entry to safety deposit boxes
• Deal with insurance and retirement benefits
• Prepare and file tax returns
• Exercise stockholder rights
• Contract for services
• Do Medicaid planning
• Collect Social Security and other benefits
• Exercise rights of the settlor or grantor of a trust

A Durable Power of Attorney may be limited to authority over property and financial matters. If you want to authorize someone to make medical decisions for you when you are no longer able to do so, you should designate someone to act as your health-care proxy.

Whom should I name as my agent? 

You may name any adult (for example, a spouse, child, other relative or a friend), or you may name a private pay guardian (such as a bank or accountant). It is very important that

you choose an agent you trust and who is willing to act solely on your behalf. Remember, your agent may be making important financial and personal decisions for you.

Can I name more than one agent? 

Yes, you can name two or more agents. If you do name more than one agent, you should specify whether your agents can act independently or whether they must act jointly. If you name two agents to act jointly, however, a deadlock may develop if they cannot agree. Rather than naming two persons to act jointly, you could name one agent with an alternate to act if the first agent cannot or will not act. However, be mindful that it may be difficult for an alternate agent to convince third parties (for example, the bank teller) that the first agent cannot or will not act.

What are the agent’s obligations to me? 

Your agent is obligated to follow your instructions (oral and written) and act in your best interest. The agent should keep accurate records and accounts and act prudently. If your agent improperly handles your affairs, he or she is legally responsible for damages to you.

What if my agent abuses the authority? 

You can revoke the Durable Power of Attorney or, if because of your disability you are unable to revoke it, anyone interested in your welfare can ask the probate court to intervene and appoint a guardian to handle your affairs.

The guardian can require the agent to account and report, and if warranted, petition the court to amend, suspend or revoke the Durable Power of Attorney. In addition, you (or your guardian) can sue your agent for damages caused by the agent’s abuse of authority.

What are some problems with a Durable Power of Attorney? 

In order for a Durable Power of Attorney to be workable, you have to give the agent a great deal of power and authority. Thus, you should be sure to choose someone you trust and have confidence in to handle your affairs.

Another problem occurs if you have an individual as your agent and he or she “quits” or “dies” or becomes disabled. In such an event, if you are mentally incapacitated and have not named an alternate agent, there will be no one to act on your behalf.

One of the biggest problems with any power of attorney is there is no guarantee that it will be accepted or recognized by third parties. For example, if the purpose of the Durable Power of Attorney is to deal with governmental agencies, such as the Social Security Administration, the Veterans Administration or the Internal Revenue Service, one must either use the agency’s special Power of Attorney form, or make sure that the Durable Power of Attorney presented to the agency contains the special wording required by each agency’s particular form.

How do I go about getting a Durable Power of Attorney? 

Because of the complexities involved, it is recommended that you consult with a knowledgeable lawyer who can prepare a Durable Power of Attorney to suit your needs and to advise you on its use.

Everyone should consider the advantages of having a Durable Power of Attorney. It’s an important part of long-term-care planning.

If you are giving your agent authority to make decisions about real estate you own, then the power of attorney is typically recorded, along with the deed, in the county clerk’s office source http://www.nj.gov/ooie/helpful/durable_power_attorney.html

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave

Edison, NJ  08817

(Phone) 732-572-0500

(Fax) 732-572-0030

" POWER OF ATTORNEY POA QUESTIONNAIRE"

         You have advised us you want a Power of Attorney only and do not want a new Will.

           We also use this Interview form if you want a Living Will. Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.

         Please be sure to check all appropriate boxes. If "NONE", please state "NONE". 

If "NOT APPLICABLE", please state "N/A".

PLEASE PRINT CLEARLY

1.    Your Full Name:

_______________________________________________________________

First                                                     Last

2.    IF MARRIED OR SEPARATED, complete (a) and (b) below:

(a) Spouse's Full Name: [none, write none]

______________________________________________________

First                                                   Last

3.  Your Street Address: ____________________________________               

City ____________________ State ____  Zip Code ______________

             

4.    Telephone Numbers:                

Cell: _______________________________    ________________________

                                                                                      

Day: ____________________/Night: ________________________

5.    E-mail address: _______________________________________

6. Referred By: ___________________________________________

         If referred by a person, is this a client or attorney?  If you heard about the law office on the internet, which search engine?  What search terms did you use?

7. Today's Date ____________________

        We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan?      

                                                                          Yes ________  No ________

POWER OF ATTORNEY POA QUESTIONNAIRE       rev 4/17/17

How can we help you? What are your questions/other important information?

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

[It is required by Court Rules that all pages be filled out in person's own handwriting prior to seeing the attorney to avoid conflicts of interest]

8.    Your Sex:      [   ] Male  [   ] Female            

9.    Your Marital Status: [  ] Single      [  ]  Married         [  ]  Separated                                              [  ] Divorced         [  ]  Widowed

10.  Your Date of Birth:  ___________________  SS # __________________

                                        Month     Day    Year

11.  Spouse Date of Birth: _________________  SS # __________________

                                           Month    Day    Year

 2.  Personal representative for Power of Attorney

         The person charged with administering bills, paying taxes and/or other debts, preserving, managing, and distributing assets and property is called the Personal Representative. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Personal Representative , followed by the child who lives closest to your home.

         Please provide the following information about the person you wish to name to serve in this capacity.

1. PRIMARY Choice of  Personal Representative for Power of Attorney:

Name: _________________________     ______________________________

            First                                             Last

Relationship: _______________ Address: ________________________

2. SECOND Choice of  Personal Representative:

         This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.

Name: _________________________     ______________________________

            First                                             Last

Relationship: _______________  Address: _____________________________

         The two proposed of Personal Representative s must be filled out prior to meeting the attorney. We do not recommend Joint of  Personal Representative s, which often cause conflicts and additional work for the Estate. It is best to select one primary person, then a secondary person.

Power of Attorney Preparation

 Why is Power of Attorney so important?

Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. All states have legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These normally require formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.

Advance preparation of the power of attorney can avoid the inconvenience and expense of legal proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late. Call an experienced attorney today to finish estate planning.

Power of Attorney

An important part of lifetime planning is the Power of Attorney. Valid in all states, these documents give one or more persons the power to act on your behalf. The power may be limited to a particular activity (e.g., closing the sale of your home) or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effective immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself). The latter are "springing" Powers of Attorney. It may give temporary or continuous, permanent authority to act on your behalf. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you. The person named in a Power of Attorney to act on your behalf is commonly referred to as your "agent" or "attorney-in-fact." With a valid Power of Attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the Power of Attorney be presented before your agents authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the Power of Attorney to the title company. The same applies to sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the Power of Attorney when signing checks for you. Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a Power of Attorney. Another important reason to use Powers of Attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident, or illness) or it may be permanent. If you do not have a Power of Attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a court proceeding, sometimes known as intervention, is needed, than you may not have the ability to choose the person who will act for you. With A Power of Attorney, you choose who will act and define their authority and its limits, if any. What are these powers of attorney? A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal. Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. All states have legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These normally require formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the power of attorney can avoid the inconvenience and expense of legal proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following: 1. 2. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate. 3. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. 4. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent. 5. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities. 6. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed. 7. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions as set forth in section 2 of P.L. 1991, c. 95 (c. 46:2B-11). 8. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing. You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.

 KENNETH VERCAMMEN & ASSOCIATES

ATTORNEY AT LAW

2053 Woodbridge Ave.

 Edison, NJ 08817

(Phone) 732-572-0500

(Fax) 732-572-0030

website: www.njlaws.com