The Power of Attorney for Parental Rights

By John Stevens J.D.

Parents must often balance their work life and other responsibilities with the needs of their children. If a situation arises that makes a parent temporarily unavailable for child care duties, the parent may have the option of signing a power-of-attorney document that names a person to make decisions about the child in the parent’s absence. Whether this option exists depends on the laws of the state where the parent resides, but the parent should consult with an attorney before finalizing any arrangements to ensure that all of the state’s legal requirements are satisfied.

Powers of Attorney in General

A power of attorney is a legal document whereby a person grants another person, called an agent, the power to act on her behalf. These powers can be very broad or very limited, and they can limit the amount of time in which the powers apply. There is some variation among the states as to who can serve as the parent’s agent. In many states, only a “qualified relative,” such as a grandparent, aunt or uncle, may serve as the parent’s agent. Some states have fill-in-the-blank power-of-attorney forms available. As an alternative, you may create your own document. The power-of-attorney document must identify the child, state you are the child’s parent, identify the person who will serve as your agent, specify what permissions you are granting to your agent, and state the amount of time your agent may act on your behalf.

Power of Attorney for School

Many states allow a parent to name a person to make limited decisions regarding a child’s schooling. The power of attorney is often limited to enrolling the child in school and authorizing school-related medical treatment. A parent is not required to allow the agent to both enroll the child in school and make decisions regarding school-related medical treatment. In other words, the parent may decide only to allow the agent to enroll the child in school or make school-related medical decisions. Schools often have a fill-in-the-blank power-of-attorney form available for these decisions.

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Power of Attorney for Health Care

Some states allow a parent to create a power-of-attorney document that allows a person to make health care decisions for the child on behalf of the parent. As with all powers of attorney, the parent can define the scope of the power. In other words, a parent can determine which types of decisions the agent can and cannot make. A power of attorney can also authorize the agent to apply for government benefits on behalf of the child to assist with health care costs.

Executing and Revoking the Power of Attorney

You must sign or “execute” your power-of-attorney document and deliver it to the person you named as your agent for the powers to take effect. You should sign your power of attorney before a notary public to reduce the risk that someone may think your signature was forged. In fact, some states require this. As an extra precaution against fraud, some states also require witnesses to watch you sign the document. You are free to cancel or “revoke” your power of attorney at any time. To revoke your power of attorney, you need only tell the person you named as your agent that the power is terminated. It is a good idea, however, to also tell your child’s school and physician that your agent no longer has the power to act on your behalf.

Formal Guardianship as an Alternative

A power of attorney for parental rights is usually designed to allow the agent to make decisions on behalf of the parent for a relatively short time and in limited circumstances. Even if your state allows you to name a person to act on your behalf regarding your children, some institutions may not honor that document. A power of attorney is not a court-authorized document, and some institutions may have concerns over whether the document is fraudulent. A formal guardianship is a court-ordered alternative to a power of attorney that names a specific individual as the child’s legal guardian. Unlike a power of attorney, a guardianship continues in effect if the child’s parents die, and also allows the guardian to make financial decisions for the child. A guardianship may be the only option for a person who wants to care for a child whose parents are not legally competent or are deceased.

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