Legal Question in Wills and Trusts in New Jersey

Re: Mental illness and POA

In order to be able to create a power of attorney or to cancel it, a person must not be mentally incapacitated, which is quite different from having mental illness.

Mental capacity consists of the ability to know what one is doing with her/his assets, exercising appropriate judgment, etc. A mentally ill person may or may not have mental capacity.

If the POA was created at a time when the person had mental capacity, but the person has become mentally incapacitated since then, the person may not revoke or cancel the POA. However, if she/he has not become incapacitated, the POA may be revoked.

If there is any question about the mental capacity of the person, it is essential to consult with an experienced attorney, who can assist in evaluating and establishing whether or not there is mental capacity.

Re: Mental illness and POA

If the mental illness results in the person being legally incompetent, then no revocation of the POA can occur.