You have always enjoyed the family vacations with the kids. However, you need some alone time. You are planning a major vacation. This time you are going without the kids. You have made arrangements for the kids. They are going to stay with trusted family or friends. Or you may be sending one or more of the kids to stay with their grandparents for the summer. If one of the kids has an accident and needs medical or other treatment and you are not reachable, who is going authorize it.
Generally, there are only three classes of persons who can make decisions regarding minors, the parents, someone appointed by the parents or someone appointed by the court. If you are not around and have not legally appointed anyone to care for your kids, it may be left up to the court.
In this situation, someone would have to petition the probate court for appointment of a guardian. After the petition for guardianship has been filed, the court schedules a hearing. Prior to the hearing, the petition and notice of hearing must be served upon all interested parties.
There are lots of people that can be interested parties. Interested parties include each person who has had principal care and custody of your minor children during the sixty-three days preceding the filing of the petition; the nominated guardian; your minor children if they are fourteen or older; and both you and the other parent of your minor children.
The court may appoint an investigator called a guardian ad litem to meet with your children and the proposed guardian and provide a report and recommendation to the court. At the hearing on the petition for guardianship, the court reviews the report of the guardian ad litem and hears testimony from your children and other interested parties. The court makes a determination of what is in the best interests of your children.
And all this takes time. You will likely be home from vacation even before all this can happen, unless the court deems it an emergency and appoints a temporary guardian. You can plan ahead and appoint someone to make decisions for the kids while you are away from them temporarily.
In the situation when you will not be around to make care and treatment decisions for your minor children and it will be for a period of time not exceeding six months, you can appoint someone to make these decisions. With a properly executed power of attorney, you may delegate to another person, any of your powers regarding care, custody, or property of one or more of your minor children, except the power to consent to marriage. This would allow your designated agent to have all of your powers regarding the care, custody and property of your children.
If you are serving in the US military and are deployed to a foreign nation, you can go beyond six months. If the power of attorney so provides, your parental delegation of powers can be effective until the thirty-first day after the end of your deployment.
What should be included in this parental delegation of powers? I generally recommend that there be three key provisions: 1) appointment of a parental agent with backups; 2) delegation of parental powers; and 3) Health Insurance Portability and Accountability Act (HIPAA) authorizations.
Not only should you choose a parental agent with good decision making skills and who can be trusted to follow the your wishes as parent, you should choose at least two similarly qualified backup parental agents. In the event that a parental agent cannot act, your wishes can still be fulfilled without probate court intervention. I have seen many situations where the named agent(s) in a power of attorney died, or otherwise could not act, necessitating a probate court proceeding. This was contrary to the person’s intent of avoiding probate court involvement by having the power of attorney drafted in the first place.
I generally recommend that you include broad delegation of parental powers in this power of attorney that cover all care, custody and property matters that your parental agent may encounter regarding your children. Basically, anything you do, your parental agent can do. Even though you include the broad power language, you also should also include much specific language related to certain matters or property. By doing this, you increase the likelihood that the parental agent will be able to act and follow your wishes.
Health care providers are sticklers for a patient’s privacy, with good reason. If a patient’s protected health information is improperly released to others, the health care provider can face substantial fines under HIPAA. So that the parental agent can speak freely with health care providers, there should be three HIPAA provisions in your parental delegation of powers.
The first HIPAA provision to include is the appointment of the parental agent as your HIPAA representative regarding your children’s health care matters. The second provision is the HIPAA authorizations to allow the parental agent to have access to your children’s confidential medical information, including discussing matters with the children’s treating physicians and other health care providers in order to make informed decisions about the children’s care and treatment. The third provision is the HIPAA authorization to allow the parental agent to sign releases of your children’s protected health information to others, including other health care providers or health insurance companies.
With a properly drafted parental delegation of powers, you can provide for the care, custody and property of your children when you are temporarily away and without court involvement.
By: Matthew M. Wallace, CPA, JD
Published edited March 20th, 2016 in The Times Herald newspaper, Port Huron, Michigan as: Taking Care of the Kids While You’re Away From Them