N.J. Stat. § 46:2B-8.1 Short title.
1. This act shall be known and may be cited as the "Revised Durable Power of Attorney Act." L.2000,c.109,s.1.
N.J. Stat. tit. 46, ch. 2B
N.J. Stat. tit. 46, ch. 2B
in effectN.J. Stat. § 46:2B-8.2 Powers of attorney; durable powers of attorney; disability defined.
2. Powers of Attorney; Durable Powers of Attorney; Disability Defined. a. A power of attorney is a written instrument by which an individual known as the principal authorizes another individual or individuals or a qualified bank within the meaning of P.L.1948, c.67, s.28 (C.17:9A-28) known as the attorney-in-fact to perform specified acts on behalf of the principal as the principal's agent. b. A durable power of attorney is a power of attorney which contains the words "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 showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity, and unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument. c. Unless otherwise defined in the instrument, a principal shall be under a disability if the principal is unable to manage his property and affairs effectively; and an attorney-in-fact shall be under a disability if the attorney-in-fact is unable to exercise the authority conferred by the power of attorney effectively. L.2000,c.109,s.2.
N.J. Stat. § 46:2B-8.3 Durable power of attorney not affected by lapse of time; disability or incapacity.
3. Durable Power of Attorney Not Affected By Lapse of Time; Disability or Incapacity. All acts done by an attorney-in-fact pursuant to a durable power of attorney during any period when the power of attorney is effective in accordance with its terms, including any period when the principal is under a disability, have the same effect and inure to the benefit of and bind the principal and the principal's successors in interest as if the principal were competent and not disabled. Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument. L.2000,c.109,s.3.
N.J. Stat. § 46:2B-8.4 Relation of attorney-in-fact to court-appointed fiduciary.
4. Relation of Attorney-in-Fact to Court-Appointed Fiduciary. a. If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal's property or all of the principal's property except specified exclusions, the attorney-in-fact is accountable to the fiduciary as well as to the principal. b. A principal may nominate, by a durable power of attorney, the conservator, guardian of the principal's estate, or guardian of the principal's person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. c. No person, other than the principal, shall revoke a durable power of attorney except upon a court order for good cause. L.2000,c.109,s.4.
N.J. Stat. § 46:2B-8.5 Power of attorney not revoked until notice.
5. Power of Attorney Not Revoked Until Notice. a. The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney-in-fact or other person who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal's successors in interest. b. The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney-in-fact or other person who, without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest. c. If the attorney-in-fact executes an affidavit stating that the act was done without actual knowledge of the revocation or termination of the power of attorney by death, disability, or incapacity, such act shall be presumed valid, subject to challenge only by a clear showing of fraud or gross neglect. L.2000,c.109,s.5.
N.J. Stat. § 46:2B-8.6 Good faith reliance.
6. Good Faith Reliance. a. Any third party may rely upon the authority granted in a durable power of attorney until the third party has received actual notice of the revocation of the power of attorney, the termination or suspension of the authority of the attorney-in-fact, or the death of the principal. b. A third party who has not received such actual notice under paragraph a. of this section may, but need not, require that the attorney-in-fact execute an affidavit stating that the attorney-in-fact did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation, the termination or suspension of the authority of the attorney-in-fact, or the principal's death, disability, or incapacity. Such affidavit is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This section does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation or a change in the principal's capacity. L.2000,c.109,s.6.
N.J. Stat. § 46:2B-8.7 Multiple attorneys-in-fact.
7. Multiple Attorneys-In-Fact. a. Unless the power of attorney expressly provides otherwise, all authority granted to multiple attorneys-in-fact may be exercised by the one or more who remain after the death, resignation or disability of one or more of the attorneys-in-fact. b. The power of attorney may provide that the attorneys-in-fact may act severally or separately. If so provided, any one of the appointed attorneys-in-fact may exercise all powers granted. c. The power of attorney may provide that the attorneys-in-fact shall act jointly. If so provided then, subject to subsection a., the concurrence of all appointed attorneys-in-fact is required to exercise any power. d. If the power of attorney does not expressly provide whether the attorneys-in-fact are to act severally or separately, or are to act jointly, such attorneys-in-fact must act jointly. e. The power of attorney may provide that the attorneys-in-fact act successively. Unless the power of attorney otherwise provides for the conditions under which a successor is qualified to act, the successor may act only upon the death, the written resignation, or the disability of the predecessor named attorney-in-fact. L.2000,c.109,s.7.
N.J. Stat. § 46:2B-8.8 Delegation by attorney-in-fact.
8. Delegation by Attorney-in-Fact. If the power of attorney shall specifically provide, the attorney-in-fact, in the exercise of reasonable care, skill and caution, may delegate to other agents such one, more, or all of the specific powers which have been conferred on the attorney-in-fact by the power of attorney. L.2000,c.109,s.8.
N.J. Stat. § 46:2B-8.9 Formality.
9. Formality. A power of attorney must be in writing, duly signed and acknowledged in the manner set forth in R.S.46:14-2.1. L.2000,c.109,s.9.
N.J. Stat. § 46:2B-8.10 Revocation.
10. Revocation. A power of attorney is revoked when the principal has caused all executed originals of the power of attorney to be physically destroyed; or when the principal has signed and caused to be acknowledged in the manner set forth in R.S.46:14-2.1 a written instrument of revocation; or when the principal has delivered to the attorney-in-fact a written revocation. Unless expressly so provided, the subsequent execution of another power of attorney does not revoke a power of attorney. L.2000,c.109,s.10.
N.J. Stat. § 46:2B-8.11 Certified copies and photocopies.
11. Certified Copies and Photocopies. Any third party to whom the power of attorney is presented may retain and rely upon a photocopy of the original signed document, or may retain and rely upon a certified copy of the original. L.2000,c.109,s.11.
N.J. Stat. § 46:2B-8.12 Compensation of the attorney-in-fact.
12. Compensation of the Attorney-in-Fact. A principal shall have the power to direct whether an attorney-in-fact is to be compensated in a power of attorney or in a separate written agreement dealing with compensation. A principal may direct that an attorney-in-fact be compensated and may provide for the method by which compensation shall be calculated and when compensation shall be paid. In the absence of any such direction and upon appropriate application, a court of competent jurisdiction may award reasonable compensation to the attorney-in-fact. L.2000,c.109,s.12.
N.J. Stat. § 46:2B-8.13 Fiduciary status and duty to account.
13. Fiduciary Status and Duty to Account. a. An attorney-in-fact has a fiduciary duty to the principal, and to the guardian of the property of the principal if the principal has been adjudicated an incapacitated person, to act within the powers delegated by the power of attorney and solely for the benefit of the principal. b. The attorney-in-fact shall maintain accurate books and records of all financial transactions. The principal, a guardian or conservator appointed for the principal, and the personal representative of the principal's estate may require the attorney-in-fact to render an accounting. The Superior Court may, upon application of any heir or other next friend of the principal, require the attorney-in-fact to render an accounting if satisfied that the principal is incapacitated and there is doubt or concern whether the attorney-in-fact is acting within the powers delegated by the power-of-attorney, or is acting solely for the benefit of the principal. L.2000,c.109,s.13.
N.J. Stat. § 46:2B-8.13a Power of attorney; gift of principal's property; prohibited
1. A power of attorney shall not be construed to authorize the attorney-in-fact to gratuitously transfer property of the principal to the attorney-in-fact or to others except to the extent that the power of attorney expressly and specifically so authorizes. An authorization in a power of attorney to generally perform all acts which the principal could perform if personally present and capable of acting, or words of like effect or meaning, is not an express or specific authorization to make gifts. L.2003,c.138.
N.J. Stat. § 46:2B-8.14 Application of act.
14. The provisions of this act shall hereafter apply to any power of attorney made pursuant to the provisions of P.L.1991, c.95 (C.46:2B-10 et seq.) relating to banking transactions under a power of attorney. This act shall complement and not supersede the provisions of P.L.1991, c.95 (C.46:2B-10 et seq.). L.2000,c.109,s.14.
N.J. Stat. § 46:2B-10 Definitions
1. As used in this act: "Account" means an agreement between a banking institution and its customer pursuant to which the banking institution accepts funds or property of the customer and agrees to repay or return the funds or property upon the terms and conditions specified in the agreement. The term "account" includes, but is not limited to, checking accounts, savings accounts, certificates of deposit and other types of time and demand accounts as banking institutions are authorized to enter into pursuant to applicable federal or State law. The term "account" does not include an agreement pursuant to which a banking institution agrees to act as a fiduciary within the meaning of the "Uniform Fiduciaries Law," N.J.S.3B:14-52 et seq. "Agent" means the person authorized to act for another person pursuant to a power of attorney. An agent may be referred to as an "attorney," "attorney-in-fact" or "deputy" in the power of attorney. "Banking institution" includes banks, savings banks, savings and loan associations and credit unions, whether chartered by the United States, this State or any other state or territory of the United States or a foreign country. A thing is done "in good faith" when it is in fact done honestly, regardless of whether it is done negligently. "Power of attorney" means a duly signed and acknowledged written document in which a principal authorizes an agent to act on his behalf. "Principal" means a person executing a power of attorney. "Safe deposit company" means a company operating pursuant to P.L.1983, c.566 (C.17:14A-1 et seq.). L.1991,c.95,s.1; amended 1994,c.142,s.1.
N.J. Stat. § 46:2B-11 Authority of agent
If any power of attorney contains language which confers authority on the agent to "conduct banking transactions as set forth in section 2 of P.L.1991, c.95 (C.46:2B-11)", the agent shall have the following authority under the power of attorney: a. To continue, modify or terminate any account or other banking arrangement made by or on behalf of the principal prior to creation of the agency; b. To open, either in the name of the agent alone, the principal alone or in both their names jointly, or otherwise, an account of any type in any banking institution selected by the agent; to hire, remove the contents of or surrender a safe deposit box or vault space; and to make other contracts for the procuring of other services made available by any banking institution or safe deposit company as the agent shall deem desirable; c. To draw, sign and deliver checks or drafts for any purpose, to withdraw by check, order, draft, wire transfer, electronic funds transfer or otherwise, any funds or property of the principal deposited with, or left in the custody of, any banking institution, wherever located, either prior or subsequent to the creation of the agency, and use any line of credit connected with any such accounts, apply for any automatic teller machine card or debit card or use any automatic teller machine card or debit card, including already existing cards, in connection with any such accounts and apply for and use any bank credit card issued in the name of the agent as an alternate user, but shall not use existing credit cards issued in the name of the principal, on existing bank credit card accounts of the principal; d. To prepare periodic financial statements concerning the assets and liabilities or income and expenses of the principal, and to deliver statements so prepared to the banking institution or other person whom the agent believes to be reasonably entitled; e. To receive statements, vouchers, notices or other documents from any banking institution and to act with respect to them; f. To have free access during normal business hours to any safe deposit box or vault to which the principal would have access if personally present; g. To borrow money by bank overdraft, loan agreement or promissory note of the principal given for a period or on demand and at an interest rate as the agent shall select; to give any security out of the assets of the principal as the agent shall deem desirable or necessary for any borrowing; to pay, renew or extend the time of payment of any agreement or note so given or given by or on behalf of the principal; and to procure for the principal a loan from any banking institution by any other procedure made available by a banking institution; h. To make, assign, endorse, discount, guaranty and negotiate for any purpose all promissory notes, checks, drafts or other negotiable or non-negotiable paper instruments of the principal or payable to the principal or to the principal's order; to receive the cash or other proceeds of these transactions; and to accept any draft drawn by any person upon the principal and pay it when due; i. To receive for the principal and deal in or with any trust receipt, warehouse receipt or other negotiable or non-negotiable instrument in which the principal has or claims to have interest; j. To apply for and receive letters of credit or traveler's checks from any banking institution selected by the agent, giving any related indemnity or other agreements as the agent shall deem appropriate; k. To consent to an extension in the time of payment for any commercial paper or banking transaction in which the principal has an interest or by which the principal is, or might be, affected in any way; l. To demand, receive, obtain by action, proceeding or otherwise any money or other thing of value to which the principal is, may become or may claim to be entitled to as the proceeds of any banking transaction conducted by the principal or by the agent in the execution of any of the powers described in this section, or partly by the principal and partly by the agent so acting; to conserve, invest, disburse or utilize anything so received for the purposes enumerated in this section; and to reimburse the agent for any expenditures properly made by the agent in the execution of the powers conferred upon the agent by the power of attorney pursuant to the provisions of this section; m. To execute, acknowledge, seal and deliver any instrument in the name of the principal or otherwise which the agent deems useful for the accomplishment of any purpose enumerated in this section; n. To prosecute, defend, submit to arbitration, settle and propose or accept a compromise with respect to any claim existing in favor of or against the principal based on or involving any banking transaction or to intervene in any action or proceeding relating to the banking transaction; o. To hire, discharge and compensate any attorney, accountant, expert witness or other assistant or assistants when the agent deems the action to be appropriate for the proper execution by the agent of any of the powers described in this section and for maintaining the necessary records; and p. In addition to the specific acts set forth in this section, to do any other act which the principal may do through an agent concerning any transaction with a banking institution which affects the financial or other interests of the principal. L.1991,c.95,s.2.
N.J. Stat. § 46:2B-12 Powers of agent
An agent may exercise all powers described in this act exercisable by the principal upon and after the presentation of the power of attorney to the banking institution with respect to any banking transaction whether conducted in this or any other state. L.1991,c.95,s.3.
N.J. Stat. § 46:2B-13 Banking institutions to accept power of attorney
4. With respect to banking transactions, banking institutions shall accept and rely on a power of attorney which conforms to this act and shall permit the agent to act and exercise the authority set forth in this act, provided that: a. The banking institution shall refuse to rely on or act pursuant to a power of attorney if (1) the signature of the principal is not genuine, or (2) the employee of the banking institution who receives, or is required to act on, the power of attorney has received actual notice of the death of the principal, of the revocation of the power of attorney or of the disability of the principal at the time of the execution of the power of attorney; b. The banking institution is not obligated to rely on or act pursuant to the power of attorney if it believes in good faith that the power of attorney does not appear to be genuine, that the principal is dead, that the power of attorney has been revoked or that the principal was under a disability at the time of the execution of the power of attorney. The banking institution shall have a reasonable time under the circumstances within which to decide whether it will rely on or act pursuant to a power of attorney presented to it, but it may refuse to act or rely upon a power of attorney first presented to it more than 10 years after its date or on which it has not acted for a 10-year period unless the agent is either the spouse, parent or a descendant of a parent of the principal; c. If the power of attorney provides that it "shall become effective upon the disability of the principal" or similar words, the banking institution is not obligated to rely on or act pursuant to the power of attorney unless the banking institution is provided by the agent with proof to its satisfaction that the principal is then under a disability as provided in the power of attorney; d. If the agent seeks to withdraw or pay funds from an account of the principal, the agent shall provide evidence satisfactory to the banking institution of his identity and shall execute a signature card in a form as required by the banking institution; e. If the banking institution refuses to rely on or act pursuant to a power of attorney and the agent or principal has, in writing, provided the banking institution with an address of the agent, the institution shall notify the agent by a writing addressed to the address provided to it that the power of attorney has been rejected and the reason for the rejection; f. The banking institution has viewed a form of power of attorney which contains an actual original signature of the principal. Alternatively, if the banking institution receives an affidavit of the agent that such an original is not available to be presented, the banking institution may accept a photocopy of the power of attorney certified to be a true copy of the original by either (1) another banking institution or (2) the county recording office of the county in which the original was recorded. L.1991,c.95,s.4; amended 1994,c.142,s.2.
N.J. Stat. § 46:2B-14 Banking institutions not liable for action in reliance on power of attorney
No banking institution acting in reliance on a power of attorney as set forth in this act, nor any person acting on behalf of such an institution, shall be held liable for injury for any act or omission if it is performed in good faith and within the scope of the institution's or person's duties, unless the act or omission constitutes a crime, actual fraud, actual malice or willful misconduct. L.1991,c.95,s.5.
N.J. Stat. § 46:2B-15 Limitations on power of agent
Nothing in this act shall be deemed to give an agent any greater authority or rights than the principal could exercise on his own behalf. L.1991,c.95,s.6.
N.J. Stat. § 46:2B-16 Banking transaction by agent binds principal
Any banking transaction made by an agent or banking institution under the authority of a power of attorney described in this act, unless otherwise invalid or unenforceable, binds the principal and his heirs, devisees, and personal representatives. L.1991,c.95,s.7.
N.J. Stat. § 46:2B-17 Power of attorney not made pursuant to this act valid
This act is not intended to be the exclusive method of providing for powers of attorney for bank transactions and nothing herein shall be deemed to invalidate or make inoperable any power of attorney which is not made pursuant to this act and which is otherwise valid. A power of attorney for banking transactions pursuant to this act may be combined with a power of attorney for other purposes. The provisions of section 1 of P.L.1971, c.373 (C.46:2B-8) shall apply to any power of attorney made pursuant to this act. L.1991,c.95,s.8.
N.J. Stat. § 46:2B-18 Banking institution may retain copy of power of attorney
The banking institution may retain a photocopy of the original signed power of attorney presented to it pursuant to subsection f. of section 4 of this act or may retain and rely upon the certified copies of the original as alternatively provided in subsection f. of section 4 and thereafter may rely on such photocopy or certified copy unless or until it receives knowledge or information that requires or permits it not to honor the power of attorney as provided in section 4. L.1991,c.95,s.9.
N.J. Stat. § 46:2B-19 Agent acting pursuant to power of attorney shall be a fiduciary
An agent presenting or acting pursuant to or relying on a power of attorney described in section 2 of this act shall be a fiduciary within the meaning of the "Uniform Fiduciaries Law," P.L.1981, c.405 (C.3B:14-52 et seq.). L.1991,c.95,s.10.
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