What Happens When a Power of Attorney and Health Care Directive are Silent About…?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Power of Attorney Lawyer

In a recent office conversation with an elderly person and his daughter, he showed me an executed Power of Attorney (POA) naming her as agent and health care agent. The POA did not state how or when the agent could be removed nor did it state a successor Agent in case the original agent could not serve. In this case a sibling suspects the agent is neglecting the principal (his dad) and therefore is placing him at risk when left in the agent’s case and custody.

The POA as written is very good. It approves every authority to the agent imaginable but does not state any grounds for the agent’s removal. Assuming a court can terminate the POA (it can) what grounds exist for a court to do so?

“Forget about going to court” I told the family. If the principal is competent he can revoke the POA at will (meaning any time he wants) pursuant to N.J.S.A. 46:2B-8.10 and the health care proxy under N.J.S.A. 26:2h-23, et seq. If he is no longer competent then both the POA and the health care proxy can be revoked by a court in a guardianship proceeding.

To discuss your NJ Power of Attorney matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.