29th Sep 2015

Family law attorney steven walton

Planning a vacation, cruise or other time from home without the kids? Worried if they need emergency medical treatment while you are away?

While you may be confident in the decision-making of your parents, in laws, or friends, doctors and other emergency medical personnel are cautious treating minors without their legal parent or guardian present. To help with this situation, we can draft a temporary Power of Attorney for Care of Minor Children.

Our clients feel far more confident and can enjoy time away without worrying when they know that if “things happen” there is a legal tool provided by the Michigan Legislature to deal with the situation.

Michigan Law on Delegation of Powers by a Parent or Guardian

A Michigan statute (MCL 700.5103) entitled “Delegation of Powers by Parent or Guardian” allows a power of attorney to be drafted and signed by parents which temporarily delegates parental powers to others concerning the care and custody of your minor children. The law, simply stated, is as follows:

(1.) By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption.

This means that if grandma and grandpa have to take a grandchild to emergency, for instance, a power of attorney properly drafted and executed under the provisions of the statute can give them the legal authority to authorize care of your minor children. This protects them, the doctors and emergency personnel from liability for up to 6 months depending on the wording of the Power of Attorney document.

The Michigan statute also addresses a particular situation where the power of attorney may remain in effect for longer than 6 months:

(2.) If a parent or guardian is serving in the armed forces of the United States and is deployed to a foreign nation, and if the power of attorney so provides, a delegation under this section is effective until the thirty-first day after the end of the deployment.

This means that the 6-month limit does not apply to the children of parents or legal guardians in the Armed Forces who may be stationed overseas and unable to renew the Power of Attorney for Care of Minor Children.

(3.) If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney and provide the court the name, address, and telephone number of the attorney-in-fact.

This means that if a court-appointed guardian (not the parent) of a minor delegates his or her powers to a third party, the Power of Attorney for Care of Minor Children must be filed with the court. For example, if Grandma is a child’s court-appointed guardian and she wants to give power of attorney to a friend so she can go on vacation, Grandma must file a Power of Attorney for Care of Minor Children with the court who originally made her the child’s legal guardian. This also applies to foster parents either temporarily or permanently appointed as guardians of a child by the court.

Link: 700.5103 Delegation of powers by parent or guardian. Sec. 5103.

What if No Power of Attorney for Care of Minor Children Document Exists?

Without a “legally authorized decision-maker” doctors, hospitals, urgent care centers, dentists and other medical professionals will be reluctant to provide needed help in non-life threatening situations. In fact, they have been told not to do so. For example, the American Academy of Pediatrics has issued a Policy Statement for the Consent of Emergency Medical Services for Children and Adolescents. It states in its recommendations:

1. A medical screening exam and any medical care necessary and likely to prevent imminent and significant harm to the pediatric patient with an emergency medical condition should never be withheld or delayed because of problems with obtaining consent.

4. Unless a minor is allowed to consent under the law, health care professionals should consider delaying all non-urgent diagnostic and treatment decisions until the parent or legal guardian can be reached for informed permission or consent.

Link: http://pediatrics.aappublications.org/content/128/2/427.full.pdf.

In other words, unless a situation is potentially life-threatening to the child, health care professionals will avoid treating minors until the parents can authorize treatment. Imagine yourself as a doctor forced to choose whether or not to treat a child without authorization. Either decision opens you up to potential criticism or even a lawsuit. With a Power of Attorney for Care of Minor Children in place, this problem is solved.

Can I Use a Free Power of Attorney for Care of Minor Children Form?

There are many free Power of Attorney for Care of Minor Children forms available online. However, simply printing and filling out a form does not automatically make your handpicked family member or friend a “legally authorized decision-maker” and authority under Michigan law is state specific. It is the “domicile” of the family (or custodial parent) that counts in determining whether a power of attorney is valid. Free forms can easily leave out essential requirements or add things that are prohibited.

In addition, the execution (the way the document is signed, witnessed and notarized) is crucial under this statute, although this is not spelled out in detail in the law itself.

There are also some practical issues that should be addressed over and above the bare requirements of the statute, such as health care insurance which can and should be referenced in the power of attorney itself.

Unlike the estate planning documents we routinely prepare for clients, including Wills, Living Trusts, Irrevocable Trusts, General Durable (financial) Powers of Attorney and Health Care Powers of Attorney, the Power of Attorney for Care of Minor Children is not permanent. The Michigan statute allows them to remain in effect for not more than 6 months unless the exception for military service applies. This means that most of the documents will have to be prepared and re-executed with the proper formality required of any power of attorney each time they are used.

The Attorneys at Simen, Figura and Parker are experts at drafting Powers of Attorney for the care of minor children, and can swiftly and inexpensively create the documentation you require before leaving on vacation or an extended period without your children.

If you want to worry less about your children while you are gone, contact us about this special power of attorney at (810) 235-9000.