2023 New Jersey Revised Statutes › Title 3B - Administration of Estates--Decedents and Others › Section 3B:12-39 - Delegation of parent's, custodian's, or guardian's powers regarding child's or minor ward's care, custody or property; limitations.

3B:12-39 Delegation of parent's, custodian's, or guardian's powers regarding child's or minor ward's care, custody or property; limitations.
3B:12-39. Delegation of parent's, custodian's, or guardian's powers regarding child's or minor ward's care, custody or property; limitations.
a. A parent, other than where sole or full legal and physical custody of the parent's minor child has been awarded to another by a court of competent jurisdiction, with the consent of the other parent, unless the other parent is deceased, incapacitated, or unavailable, or a custodian of a minor child who is not that child's parent, with the consent of a parent with whom the custodian shares legal custody, unless that parent is deceased, incapacitated, or unavailable, or a guardian of a minor child or a minor ward may:
by a properly executed power of attorney, delegate to another person any of the parent's, custodian's, or guardian's powers regarding care, custody, or property of the minor child or minor ward.
b. A delegation made under this section shall: (1) expire one year from the effective date of the properly executed power of attorney, provided, however, that the parent, custodian, or guardian shall be permitted to renew the delegation for additional one-year periods using the same process as applies to the original delegation, and may be extended for an additional six months in exigent circumstances; and
(2) may become effective upon proper execution of the power of attorney or upon another activating event specified in a properly executed power of attorney.
c. A parent, custodian, or guardian may revoke a delegation made under this section by notifying the attorney-in-fact named in the power of attorney orally, in writing, or by any other act evidencing a specific intent to revoke the power of attorney.
d. A parent, custodian, or guardian may delegate under this section only such powers as the parent, custodian, or guardian possesses.
e. A delegation made under this section shall not deprive the parent, custodian, or guardian of the parent's, custodian's, or guardian's existing powers regarding care, custody, or property of the minor child or minor ward, but the parent, custodian, or guardian shall exercise such powers, insofar as the parent, custodian, or guardian is able, concurrently with the attorney-in-fact named in the power of attorney. In the event of a disagreement between a parent, custodian, or guardian and the attorney-in-fact regarding the care, custody, or property of the minor child or minor ward, the decision of the parent, custodian, or guardian shall control.
f. Nothing in this section shall be construed to involuntarily deprive any parent of parental rights.
g. As used in this section:
"Activating event" means an event stated in the delegation that empowers the attorney-in-fact to assume the duties of the office. Activating events include, but are not limited to: the execution of a power of attorney pursuant to this section; the parent's, custodian's, or guardian's attending physician concludes that the parent, custodian, or guardian is incapacitated; the parent's, custodian's, or guardian's attending physician concludes that the parent, custodian, or guardian is debilitated; the parent, custodian, or guardian is subject to immigration administrative action; the parent, custodian, or guardian is subject to criminal proceedings; the parent, custodian, or guardian is in military service; or the death of the parent, custodian, or guardian in circumstances in which no testamentary guardianship or other more permanent care arrangement has been made for the minor child or minor ward, provided, however, that in no case shall a power of attorney activated by the death of a parent, guardian, or custodian extend beyond the year that the power of attorney is in effect.
"Attending physician" means the physician who has primary responsibility for the treatment and care for the parent, custodian, or guardian making the delegation. When more than one physician shares this responsibility, or when a physician is acting on the primary physician's behalf, any such physician may act as the attending physician pursuant to this section. When no physician has this responsibility, a physician who is familiar with the parent's, custodian's, or legal guardian's medical condition may act as the attending physician.
"Attorney-in-fact" means the person to whom a parent, custodian, or guardian delegates powers under a properly executed power of attorney pursuant to this section.
"Consent" means written consent of a non-delegating parent as evidenced by that person's signature on the power of attorney, in the presence of two witnesses.
"Criminal proceeding" means any incarceration on criminal charges, including pending charges, or a criminal sentence that separates a parent, custodian, or guardian from a minor child or minor ward.
"Custodian" means a person, other than a parent, who has been granted legal and physical custody of a minor child by a court of competent jurisdiction.
"Debilitated" means the parent, custodian, or guardian has a chronic and substantial inability, as a result of a physically debilitating illness, disease, or injury, to care for the parent's, custodian's, or guardian's minor child or minor ward.
"Exigent circumstances" means circumstances that render the parent, custodian, or guardian who makes a delegation unable to execute a renewal of the delegation for reasons including, but not limited to, that the parent, custodian, or guardian is debilitated or incapacitated, and that would cause imminent harm or threatened harm to the well-being of the parent's, custodian's, or guardian's minor child or minor ward without such renewal.
"Guardian" means a person who has qualified as a guardian of the person of a minor pursuant to court appointment, including, but not limited to, a kinship legal guardian, but does not mean a person who is serving only as a guardian ad litem.
"Immigration administrative action" means any immigration proceeding, enforcement action, detention, removal, or deportation that separates a parent, custodian, or guardian from a minor child or minor ward.
"Incapacitated" means the parent, custodian, or guardian is impaired by reason of mental illness, intellectual disability, physical illness or disability, substance use disorder, or other cause, except minority, to the extent that the person lacks sufficient capacity to manage the affairs of and provide care for the parent's, custodian's, or guardian's minor child or minor ward, and a consequent inability to make these decisions.
"Military service" means duty by any person in the active military service of the United States or the active military service of the State, including in the National Guard or State Guard, that separates a parent, custodian, or guardian from a minor child or minor ward.
"Minor child" means a child under the age of 18 years but excludes a child residing in a placement funded or approved by the Division of Child Protection and Permanency in the Department of Children and Families pursuant to either a voluntary placement agreement or court order.
"Minor ward" means a minor child for whom a guardian is appointed.
"Parent" means the biological or adoptive parent of a minor child.
"Unavailable" means: a parent who has not been involved in raising or financially supporting the child for two years or a third of the life of the child, whichever is less, immediately preceding the delegation made pursuant to this section; a parent whose identity or whereabouts are unknown; or a parent who cannot be reached after diligent efforts.
h. A delegation made under this section may, but need not, be in the following form:
POWER OF ATTORNEY AND DELEGATION OF AUTHORITY
BY PARENT, CUSTODIAN, OR GUARDIAN CONCERNING MINOR CHILD(REN) OR MINOR WARD(S) PURSUANT TO N.J.S. 3B:12-39
This power of attorney is made between (name(s), of parent(s), custodian(s), or guardian(s)), residing at (address(es) of parent(s), custodian(s), or guardian(s)) and reachable at (telephone number(s) of parent(s), custodian(s), or guardian(s)) and (name of alternative caregiver), referred to here as "attorney-in-fact," residing at (home address of alternative caregiver) and reachable at (telephone number of alternative caregiver).
If a parent is signing, the other parent must generally also sign below to show consent. Similarly, if a custodian who shares legal custody with a parent is signing, the parent who shares legal custody must generally also sign below to show consent. If such parent does not sign below, please check off reason(s) to explain why:
___Such parent is deceased.
___By order of a court of competent jurisdiction, such parent retains neither legal nor physical custody of child(ren).
___Such parent is mentally or physically unable to give consent.
___Such parent has not been involved in raising or financially supporting child(ren) for two years or a third of the life of the child(ren), whichever is less, immediately preceding the date of the latest signature below.
___Identity or whereabouts of such parent are unknown to me.
___Despite diligent efforts described below, I was unable to reach such parent.
Diligent efforts included:
________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Other:_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
I/we appoint said attorney-in-fact, pursuant to N.J.S.3B:12-39, and delegate to said attorney-in-fact the following powers, all of which I/we possess, concerning the care, custody, and/or property of my/our minor child/minor ward, (name of minor child/minor ward), born on _____ day of ______, 20___ (add other minor children's or minor wards' names and birthdates as appropriate)
___Care-Giving. The attorney-in-fact shall have temporary care-giving authority for the minor child(ren)/minor ward(s), until such time as the minor child(ren)/minor ward(s) is/are returned to my/our physical custody, or his/her/their custody status is altered by a federal, state, or local agency; or changed by a court of law.
___Well-Being. The attorney-in-fact shall have the power to provide for the physical and mental well-being of the minor child(ren)/minor ward(s), including, but not limited to, providing food and shelter.
___Education. The attorney-in-fact shall have the authority to enroll the minor child(ren)/minor ward(s) in the appropriate educational institutions; obtain access to his/her/their school records; authorize his/her/their participation in school activities; and make any and all decisions related to his/her/their education, including, but not limited to, those related to special education.
___Health Care. The attorney-in-fact shall have the authority, to the same extent that a parent/custodian/guardian would have the authority, to make medical, dental, and mental health decisions; to sign documents, waivers, and releases required by a hospital or physician; to access medical, dental, or mental health records concerning the minor child(ren)/minor ward(s); to authorize the minor child(ren)'/ minor ward(s)' admission to or discharge from any hospital or medical care facility; to consult with any health care provider; to consent to the provision, withholding, modification, or withdrawal of any health care procedure; and to make other decisions related to the health care needs of the minor child(ren)/minor ward(s).
____Travel. The attorney-in-fact shall have the authority to make travel arrangements on behalf of the minor child(ren)/ minor ward(s) for destinations both inside and outside of the United States by air and/or ground transportation; to accompany the minor child(ren)/minor ward(s) on any such trips; and to make any and all related arrangements on behalf of the minor child(ren)/minor ward(s), including, but not limited to, hotel accommodations.
____Financial Interests. The attorney-in-fact may handle any and all financial affairs and any and all personal and legal matters concerning the minor child(ren)/minor ward(s).
____All Other Powers. The attorney-in-fact shall have the authority to handle and engage in any and all other matters relating to the care, custody, and property of the minor child(ren)/minor ward(s) which are permitted pursuant to applicable State law.
By this delegation, I/we provide that the attorney-in-fact's authority shall take effect upon the following "activating event(s)" (check all that apply):
___The execution of this document on the latest date below; or
___My attending physician concludes that I am incapacitated, and thus unable to care for my minor child(ren)/minor ward(s); or
___My attending physician concludes that I am physically debilitated, and thus unable to care for my minor child(ren)/minor ward(s); or
___I am detained in immigration detention, removed, or deported; or
___I am incarcerated based on criminal charges, including pending charges, or conviction; or
___I am deployed in military service; or
___Upon my death, if I have made no more permanent care arrangements for my minor child or minor ward; or
___Other (specify reason).
In the event that the person designated above is unable or unwilling to act as attorney-in-fact to my minor child(ren)/minor ward(s), I hereby name (name, address, and telephone number of alternate attorney-in-fact), as alternate attorney-in-fact of my minor child(ren)/minor ward(s).
I/we understand that this delegation will expire one year from the execution of this document on the latest date below, and that the authority of the attorney-in-fact, if any, will cease, unless by that date (i) I renew this delegation, by the same process applicable to the original delegation; (ii) a court of competent jurisdiction appoints a custodian, guardian, or standby guardian for the minor child(ren)/minor ward(s); or (iii) exigent circumstances make it impossible for me to renew this delegation, and I have not made alternative care arrangements for my minor child(ren)/minor ward(s).
I/we hereby authorize that the attorney-in-fact as set forth above shall be provided with a copy of my/our attending physician's statement(s), if applicable.
In the event that an activating event occurs and a power of attorney is activated pursuant to this statement, I declare that it is my intention to retain full parental rights to the extent consistent with my condition and circumstances and, further, that I retain the authority to revoke the power of attorney consistent with my rights herein at any time.
Parent's/Custodian's/Guardian's Signature:
Date:
Signature of other parent or of parent who shares legal custody with a custodian who signed above:
Date:
Witness's Signature:
Address:
Date:
Witness's Signature:
Address:
Date:
amended 2005, c.304, s.27; 2021, c.192, s.1; 2023, c.177, s.15.