Health Care Power of Attorney Requirements in New Jersey

At a glance

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 August 8, 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 August 8, 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 August 14, 2026).