Power of Attorney for Minor Children

By Tom Speranza, J.D.

Power of Attorney for Minor Children

By Tom Speranza, J.D.

A parent can use a power of attorney, or POA, to authorize someone else to make certain decisions for their minor children under 18 years of age.

Generally speaking, this document is a written contract in which someone, called the principal, grants another person, called the agent, the legal power to make decisions for them—either on a temporary or long-term basis. This document are often used in connection with financial or healthcare matters, particularly when the principal wants to plan for a future time when they may be mentally incapacitated.

Woman working at a computer while drinking a cup of coffee next to a young girl sitting on the table next to her

A POA helps parents ensure that their minor children will be looked after in specific situations.

Scope of a Child-Related Power of Attorney

With regard to children, a power of attorney is typically used if a custodial parent will be physically absent or unavailable for some period of time, and, as a result, will have limited ability to make "real time" decisions for the children. Some situations when a POA is used for minor children include:

  • A parent traveling abroad without their children
  • A parent serving a prison term or some other extended incarceration
  • A parent temporarily relocating to another city without their children
  • A parent on active military duty in a location away from their children
  • A parent hospitalized for an extended period because of a serious physical or mental illness

In most cases, a power of attorney for children is limited to school and healthcare issues. Education-related decisions about school-age children may include enrolling them in school, approving their courses, managing discipline issues, and dealing with teachers and administrators. Common medical decisions an agent may make for children involve scheduling and attending doctors' appointments, seeking treatment for illness and injuries, administering prescription drugs, admitting the children to an emergency room or hospital, and consenting to medication, surgery, and other dental or medical procedures.

Enforceability of a Child-Related Power of Attorney

A power of attorney for children is inherently limited because state law does not divest parents of their parental rights without a showing of reasonable cause (usually some allegation of wrongdoing), a hearing before a judge or magistrate, and the issuance of a court order. A child-related POA does not and cannot:

  • Divest a parent of parental rights
  • Create a permanent guardianship
  • Modify the legal custody of the children

As a technical legal matter, a power of attorney for minor children creates nothing more than a temporary guardianship or a temporary delegation of parental authority. The parent can revoke the POA at any time, and the agent can resign at any time.

Most hospitals and other healthcare providers honor powers of attorney for minor children, but they often insist on proof of the parent's health insurance policy that covers the children. The health insurance covering the agent does not extend coverage to the children subject to the power of attorney.

School districts vary as to their acceptance of a POA as proof of the agent's authority. Districts sometimes require the use of specific forms containing standard language and signature blocks requiring witnesses and notarization.

Drafting a Child-Related Power of Attorney

Because of the limited enforceability of child-related powers of attorney under the laws of most states, there is not much guidance in state statutory codes for writing one. The state laws that apply to financial and healthcare powers of attorney do, however, provide a roadmap for the basic information required. This usually includes:

  • The principal's full name, permanent address, and phone number
  • The names, ages, and addresses of the principal's minor children
  • The agent's full name, permanent address, and phone number
  • The identity of any successor agents chosen by the principal to act as the agent if the principal revokes the initial agent's authority or the initial agent resigns
  • The duration of the POAand any specifications on when it takes effect or ends, such as if the principal's travel abroad triggers its start
  • The scope of the agent's authority (the types of decisions the agent is empowered to make)
  • Any specific limits on the agent's authority or any other special instructions for the agent
  • Signatures of the principal and agent witnessed and acknowledged by a notary public who also signs the document and applies a stamp or seal

An estate planning attorney can assist you in drafting a power of attorney appointing a temporary caretaker for your children.

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