When we typically think of parental incapacitation, we tend to think of guardianships. In the case of a guardianship, the guardians are given complete decision-making authority and custody, as if the minors are their own children. This is needful and good when the parents are dead or permanently out of the picture.
However, in the case of a temporary incapacity, that is not the outcome we are looking for, as parents will still want to retain their parental decision-making authority.
In addition to planning for a permanent event like death, you need a plan for your temporary incapacity. How can you make sure your children are well provided for and cared for in the event of temporary incapacity, such as seasonal work, deployment in the military, time in the hospital, time in prison, a long trip, etc.?
Enter the Parental Power of Attorney.
Many states, including Idaho, have rules surrounding a temporary arrangement known as a parental power of attorney, or delegation of powers by parent. (See Idaho Code 15-5-104.)
These laws state that a parent or guardian may delegate any of their parental or guardian powers (such as medical and educational care) for a specific period of time up to 6 months (or up to 12 months in the case of military serving outside the United States) while still retaining their own legal custody of their child(ren).
In my experience, many of my clients who have used this parental power of attorney have done so with a specific goal or period of time in mind. For example, a single parent who has to leave for months at a time for seasonal work can create a parental POA granting a grandparent the powers enumerated in the statute while the parent is away. This means that the grandparent (or aunt, uncle, sibling, friend, or other relative) will have the authority to make decisions for healthcare, talk with teachers, and generally act in loco parentis while the parent is gone.
In cases such as seasonal work or military service, the parties know ahead of time when the parent will depart and when he or she will return, and can list specific dates during which the parental power of attorney will be effective.
However, in the case of sudden incapacity, such as accident or sudden illness, we can not know when the misfortune will fall. The Parental Power of Attorney can still be helpful in these situations. Once you execute your Parental POA, it is “live” for 3 years from the execution date. This means that, at any point during the 3 years, if you become incapacitated, the document will take effect.
You can obviously revoke this at anytime, if you want to change parties (for example, if you move, and would like to change to a close local friend as a temporary guardian rather than grandparents across the country). Also, once the parental power of attorney expires, you can simply execute a new one, with similar or different terms.
The important thing is that you have one in place as a safety net to be prepared in the case of unforeseen illness, or obviously, to have one in place if you know you are going to be gone for an extended period.
I believe the parental power of attorney is an often-overlooked, but important and powerful tool for parents to secure the well-being of their children. I include it in all of my estate planning packages, to help make sure your family is prepared and protected in the event of both permanent and temporary crises.
Eifert Law Firm
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