New Jersey law does not specify powers conferred by default. Prudence therefore dictates that all powers required be included.
Special attention should be paid each and every power which must be included, but special-special mention must be made of gifts and banking.
(1) Gifts. The power to gift could be controversial as potentially anti-fiduciary; however, it is a mighty sword in the estate planning arena as a means of mitigating taxes. In order for the I.R.S. to acknowledge a transfer as a gift made pursuant to a POA, the POA must specifically authorize the attorney in fact to make gifts on the principal’s behalf. While there are potential exceptions, they are limited; further, courts in particular construe POA language strictly.
(2) Banking. All the statutorily-provided banking powers set forth in N.J.S.A. 46:2B-10 et seq. are incorporated by reference into the POA simply by including the required language: “conduct banking transactions as set forth in Section 2 of P.L. 1991, C. 95 (C.46:2B-11).”
The statute also delivers several other benefits. If the attorney in fact is a spouse or blood-relative of the principal, there is no expiration date. If the attorney in fact is neither, then a ten-year stale-date period applies. N.J.S.A. 46:2B-13(b). It also provides that the bank may retain a POA copy, so long as it has seen the original. In the alternative, the bank must accept an affidavit from the attorney in fact stating that the original is unavailable along with a certified copy.
