The Power of Attorney for Custody

By Christine Funk, J.D.

The Power of Attorney for Custody

By Christine Funk, J.D.

A power of attorney, or POA, grants authority for someone to act on another's behalf. In many states, a parent can bestow a POA on another person, called the agent, to care for their child on the parent's behalf. Though the responsible adult that has been chosen as the agent can make custodial decisions for the child while the child is in their care, creating this document is not the same thing as transferring legal custody.

Little girl writing while a woman holding a book watches her

A POA for this purpose is also limited in duration, typically to a time frame of six months to one year. However, federal law provides for the power of attorney for minor children of deployed military members to last until such time as they return from deployment.

Times When Power of Attorney May Be Useful

There are a number of situations where bestowing power of attorney for the care of children may be useful. Some of those situations include:

  • Military deployment
  • Extended travel for work
  • Incarceration
  • Inpatient treatment for chemical dependency
  • Vacation

In executing a POA, the parents have the right to determine the nature and extent of the designated agent's powers. Often, they grant power of attorney to allow a responsible adult to make decisions about schooling and medical treatments. However, a parent can also decide to extend general authority to the agent. This allows the agent to make decisions the mother or father would normally make.

In some states, parents are not allowed to extend complete parental authority. For example, while a parent may be able to consent to a marriage for an underage child or consent to adoption, military service, or selling or gifting a minor's property, in some states, an agent so designated by a legal POA does not have that same authority. Some states also limit who a parent can appoint as an agent.

Legal Requirements for Power of Attorney

There are several legal requirements for establishing power of attorney. First, if they share legal custody, both must sign the legal document designating a third party as the agent. Second, some states require them to file a POA with the court. You can learn your state's rules regarding the power of attorney involving a child on your state website or by speaking to the Office of the Attorney General.

Even if a power of attorney spells out a specific length of time for the agent to care for the child or children on the parent's behalf, the guardians may revoke it at any time and for any reason. Different states have different rules about revoking a POA. While a parent should generally revoke this legal document in writing with all of the original POA documents destroyed, including copies, some states require additional action.

Power of Attorney vs. Legal Custody

Power of attorney gives someone other than a legal parent or guardian the right to make decisions about a child's welfare, but it does not establish legal custody. You can only modify legal custody through court proceedings.

If you are considering executing a POA for your child, it is often helpful to consult an experienced attorney for guidance.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.