New Jersey: Health Care Power of Attorney Requirements

New Jersey calls the health care power of attorney a proxy directive. It can
stand by itself or be combined with an instruction directive, the part that
records treatment wishes. The rules are in the New Jersey Advance Directives for
Health Care Act, N.J.S.A. §§ 26:2H-53 through 26:2H-78. The Department of Health
publishes a model proxy form, but the statute does not require that particular
form.

Requirements one by one

The signer must have mental capacity

Section 26:2H-55 defines a declarant as "an adult who has the mental capacity to
execute an advance directive and does so." The directive must be signed and
dated by the declarant, or by another person acting at the declarant's direction
(§ 26:2H-56). The statute defines an adult by reference to New Jersey's age-of-
majority law rather than repeating an age in the Advance Directives Act.

Two witnesses or an acknowledgment — not both

Section 26:2H-56 gives two alternative execution paths. The first is signing in
the presence of "two subscribing adult witnesses," who attest that the declarant
is "of sound mind and free of duress and undue influence." The second is signing
and acknowledging the directive before "a notary public, attorney at law, or
other person authorized to administer oaths." Either path works; the Act does not
require both.

The person appointed as health care representative cannot be one of the
witnesses. Unlike several states, New Jersey's execution section does not also
require an unrelated or non-heir witness.

Facility staff usually cannot serve as representative

The representative must be an adult with mental capacity. Section 26:2H-58 bars
an operator, administrator, or employee of the institution where the declarant
is a patient or resident from serving unless that person is related to the
declarant by blood, marriage, domestic partnership, civil union, or adoption. A
physician may serve only if the physician is not acting as both attending
physician and representative at the same time.

Authority starts after a capacity determination

The directive becomes operative only when it has been transmitted to the
attending physician or institution and the patient is found unable to make the
particular health care decision (§ 26:2H-59). Under § 26:2H-60, the attending
physician must put that determination and its basis in writing in the medical
record. Another physician normally confirms it. Confirmation may be skipped
only when the lack of capacity is clearly apparent and the attending physician
and representative agree it is unnecessary.

The representative follows the patient's decision, then best interests

Once authority begins, § 26:2H-61 lets the representative give informed consent
to or refuse health care within the directive and the Act. The representative
must first seek the decision the patient would have made. Only when the patient's
wishes cannot adequately be determined does the statute direct the
representative to act in the patient's best interests.

Revocation can be oral or shown by conduct

Section 26:2H-57 allows revocation by oral or written notice to the
representative, a physician, nurse, other health professional, or another
reliable witness. Any other act showing an intent to revoke also works, as does
executing a later directive. Divorce or legal separation revokes a spouse's
appointment; termination of a domestic partnership or civil union does the same
for that partner, unless the directive says otherwise.

New Jersey recognizes a valid out-of-state directive

The Department of Health's current FAQ asks, "Does New Jersey recognize an
advance directive that is valid in another state?" and answers, "Yes." The
Advance Directives Act does not contain a separate section spelling out a
choice-of-law test, so a person who regularly receives care in New Jersey may
still prefer to use the state's own form and terminology.

What trips people up

• The representative cannot witness the appointment. Use two other adults
  if you choose the witness route (§ 26:2H-56).
• A notary is only one acknowledgment option. An attorney or another person
  authorized to administer oaths can also take the acknowledgment.
• A physician's first finding is not always enough. A confirming physician
  is normally required unless incapacity is clearly apparent and the attending
  physician and representative agree to dispense with confirmation
  (§ 26:2H-60).
• Relationship changes can cancel the appointment automatically. Divorce,
  legal separation, or termination of a domestic partnership or civil union can
  revoke the former partner's designation even if the paper document is never
  destroyed (§ 26:2H-57).

Common questions

Can I name alternate representatives?

Yes. Section 26:2H-58 allows one or more alternates listed in priority order. An
alternate serves when the primary representative is unavailable, unable,
unwilling, or disqualified.

Does serving as representative make me responsible for the medical bills?

No. Section 26:2H-61 says the grant of decision-making authority does not impose
liability on the representative for any part of the patient's health care costs.

Can I record treatment wishes in the same document?

Yes. A New Jersey advance directive may include both the proxy directive that
appoints the representative and an instruction directive stating treatment
wishes (§§ 26:2H-55, -58).

Statutes and sources

• N.J. Stat. §§ 26:2H-55 to -61. Definitions, execution, revocation,
  representative qualifications, effective trigger, capacity finding, and
  authority. Current text was verified through the official 1991 enactment and
  the Legislature's later official reenactments in P.L.2013, c.103 and P.L.2015,
  c.125. Official 1991 legislative history,
  P.L.2013, c.103, and
  P.L.2015, c.125 (accessed
  July 17, 2026).
• New Jersey Department of Health, Advance Directive Forms & FAQs. Model
  proxy directive, execution guidance, and confirmation that New Jersey
  recognizes a directive valid in another state.
  Official guidance
  (accessed July 17, 2026).
• NJ A1562 (2026-2027). Pending proposal to add the patient's religious
  beliefs to the representative's fallback decision standard.
  Official bill text
  (checked July 17, 2026).