Temporary Incapacity + Protecting Your Children

In a previous blog post we discussed emergency planning and estate planning. What happens if you suddenly die or are incapacitated? We spent a little time laying out some practical steps to take in order to make sure nothing is overlooked in an emergency and that your wishes are carried out promptly. See blog post here (hyperlink).

One of the more important subjects is what to do for children. In this post, we will not be considering the steps to take in the event of death, those were already laid out here. However, we will be discussing temporary incapacity, and how to deal with that in a way that protects and cares for your children. This is a particularly prescient issue considering the spread of the COVID-19 virus and its effects on many of those who contract it. While often not fatal, it can and has incapacitated many whom are infected. This is a particular concern for those with minor children. 

We understand guardianships and generally how they work. But those are for permanent situations. What about temporary incapacity, through disease or otherwise? What about a long trip, seasonal work, or even time in prison? If a guardianship is granted, then generally if there is a surviving parent, that parent loses decision-making authority, custody, etc.  Obviously, that is not the outcome we are looking for. Fortunately, many states, Idaho included, have rules surrounding a temporary arrangement known as a parental power of attorney or delegation of powers by parent. 

Under Idaho Code 15-5-104, this delegation is authorized. The statute reads thusly: 

DELEGATION OF POWERS BY PARENT OR GUARDIAN. A parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six (6) months, or in the case of military personnel serving beyond the territorial limits of the United States for a period not exceeding twelve (12) months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor or ward including, but not limited to, powers for medical care and educational care of the minor or ward, except the parent’s or guardian’s power to consent to marriage or adoption of a minor or ward. The delegation for a minor to a grandparent of the minor, or to a sibling of the minor, or to a sibling of either parent of the minor, shall continue in effect until the time period, or date, or condition set forth in the power of attorney for automatic expiration of the power of attorney occurs. If the power of attorney does not provide a time period, or date, or condition for automatic expiration of the power, the power of attorney shall continue in effect for a period of three (3) years. The power may be revoked prior to the expiration of the three (3) year period, or prior to the time period, or date, or condition for automatic expiration, in a writing delivered to the grandparent or sibling by the delegating parent or guardian. The power of attorney does not need to be notarized or recorded to be valid. However, if the power is recorded, any revocation of the power by a writing must also be recorded before the revocation is effective.

I generally avoid providing statutory language in my posts, since the language is often confusing and opaque. However, this is an example of a clearly drafted statute, so I thought it would be helpful to include it. 

Let’s unpack some of the practical implications and applications. 

In my experience, many of my clients who have used this parental power of attorney will do so with a specific goal or period of time in mind. A single parent who has to leave for months at a time for seasonal work will execute one of these granting a grandparent the powers enumerated in the statute (custody, care, powers for health and education, etc.) 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 as in loco parentis while the parent is gone. Since 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, the parties can list specific dates during which the parental power of attorney will be effective. 

However, in the case of sudden incapacity, we often do not know the misfortune will fall. At this point, the language in the latter half of the statute becomes important.  The statute reads If the power of attorney does not provide a time period, or date, or condition for automatic expiration of the power, the power of attorney shall continue in effect for a period of three (3) years. We can draft a parental power of attorney that will continue in effect for 3 years. This means that at any point during the 3 years, if you become incapacitated, the document will take effect. Obviously, you may revoke this at any time (you want to change parties under the power of attorney, etc.). Also, once the parental power of attorney expires, you can simply execute a new one, with similar or different terms. 

The parental power of attorney is an often overlooked but powerful tool against uncertainty that can easily be integrated into your estate plan.  

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Eifert Law Firm

At Eifert Law Firm, we are committed to constantly honing our expertise and to continue learning and innovating to give you the best counsel in estate planning, probate, estate administration, and business law.
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