Shared Decision Making – Power of Attorney

February 15, 2022

When imagining the future for a family member with autism, it’s crucial to understand the distinctions between power of attorney (POA), guardianship, and supported decision-making.

Guardianship laws recognize when an individual with a disability lacks the ability to make decisions for themselves, and they allow another person to make all life choices for that individual. In contrast, supported decision-making allows people with disabilities to make their own choices with support. However, New Jersey does not currently have any supported decision-making laws or regulations.

Power of attorney offers a middle ground by allowing a person (the “agent”) to make some decisions for an individual on the spectrum or with developmental disabilities (the “principal”), but without the hassle and expense of court appearances. It can also offer a binding legal document that is more substantial than a supported decision-making plan.

All powers of attorney in New Jersey require that both the principal and agent have capacity to make decisions and be of sound mind at the time the POA is created. Since POA is a sharing of decision making power, an individual can’t share the ability to make decisions with family members if he or she does not have the legal capacity to make those decisions in the first place.

What are the different types of Power of Attorney?

Below we aim to demystify the different types of power of attorney. While not all of these the types of POA listed below will apply to individuals with autism, they are included to help families understand the technical and legal information available about Powers of Attorney.

General POA

General Power of Attorney | A general power of attorney allows a person to act on behalf of the principal in any and all matters, as allowed by the state. The agent under a General Power of Attorney agreement may be authorized to take care of issues such as handling bank accounts, signing checks, selling property and assets like stocks, filing taxes, etc. This type of POA goes into effect immediately and ends upon the incapacitation of or death of the principal. It is only valid while the principal is competent or, in other words, while the principal is able to make decisions for him or herself and understand the consequences of those decisions. This is because the principal needs to be aware enough to agree to have control released on their behalf.

Decision-making support for adults with autism:  A general POA is the type most likely to be useful to an individual with autism and his or her family. While the individual with autism keeps decision-making power for themselves, it can permit parents or other family members who have a general power of attorney to make decisions for the individual as well. For example, a parent with a general POA can help an adult child manage their finances or pay bills.

Durable POA

Durable Power of Attorney  |  A durable power of attorney goes into effect immediately. However, this POA stays in place even if the principal becomes incapacitated. It ends only upon the death of the principal. This is most commonly used for a principal who does not understand financial matters, and it usually allows the agent to sign checks or buy and sell real estate on behalf of the principal.

The difference between a general and a durable POA is when the POA ends. The General POA ends when the principal becomes incapacitated. The Durable POA will stay in effect until the death of the principal and regardless of whether the principal is incapacitated.

Decision-making support for adults with autism:  Autism is a developmental disability that is pervasive and life-long. The “incapacitation” anticipated by the durable POA is not a legal inability to make and understand the consequences of decisions that may be due to an individual’s autism. Instead, that future, possible incapacitation would normally be due to potential injury, illness, or old age. Accordingly, this type of POA would not be the best option for families considering decision making support for individuals turning 18.

Limited POA

Limited Power of Attorney  |  A limited power of attorney is used as a delegation of a principal party’s authority for an agent’s use over specific matters. Here, one individual can give another individual the right to perform certain tasks in his or her name, while still maintaining full and exclusive autonomy with respect to other tasks.

This should be differentiated from general power of attorney, with which the agent can do nearly anything, such as selling assets, transferring funds, or making gifts or investments. An agent with limited power of attorney can handle a specific task, such as buying property or opening a bank account for the individual who needs the assistance.

Decision-making for adults with autism: This type of POA is transactional, like filing loan applications or retitling a deed. It is reserved for specific instances versus broader powers.

Springing POA

Springing Power of Attorney   |  This POA goes into effect when and only when the principal becomes incapacitated, hence the name Springing Power of Attorney. In New Jersey, all POA documents require that both the principal and the agent are competent and be of sound mind at the point at which they are executed. However, if – at some future point – the principal with a springing POA loses the ability to make decisions, the agent can then act on his or her behalf.

Decision-making for adults with autism: This type of POA is the least likely to apply to families seeking decision making support individuals with autism. Since autism is a life-long disability, Springing POA would not apply to an individual who lacks legal decision-making capacity as a result of autism.

Only You Know What’s Right For Your Family

Each of these decision-making arrangements has its place, but what is best for your loved one is a deeply individualized choice. It is best to seek the advice of legal counsel to help you determine the best option for your specific circumstances. Visit the Legal and Financial Services and the Legal Services – Adult Services sections of our referral database for a list of professionals who can help you make this important decision.