Michigan law presumes that the parents are the only people who have the legal authority to make decisions regarding the medical care, education and religious upbringing of a minor child. In the event that the parents are unavailable, lost or deceased, then a judge can appoint a legal guardian to a minor child to make these types of parental decisions either permanently or until a court determines that the parents can reassume the responsibility. In some cases, a court may grant custody of a minor child to a third party permanently.
But what about those cases where the parents will only be gone for a short or defined period of time such as a vacation or military deployment? Is it really necessary to file for a guardianship in a court of law to have someone else care for my children temporarily?
Fortunately, Michigan law permits a parent or guardian of a minor child to create a power of attorney that temporarily delegates parental authority to another person. The following rules apply to these types of power of attorney:
- Must Be Properly Executed: This document must either signed in the presence of 2 witnesses who also sign the durable power of attorney (neither of whom is the attorney-in-fact) OR acknowledged by the principal and signed before a notary public, OR BOTH. MCL 700.5501(2).
- Limitations To Grant Of Authority: A parent of guardian may delegate any or all of his or her powers regarding care, custody, or property of the minor child or ward. However, the parent or guardian cannot delegate the power to consent to marriage or adoption of a minor ward of to release of a minor ward for adoption. MCL 700.5103(1).
- Time Limitations: “A parent shall not knowingly and intentionally delegate his or her powers under this section regarding care and custody of the parent’s minor child for longer than 180 days…” MCL 700.5103(2). However, “[i]f 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.” MCL 700.5103(3).
It is worth noting that a parent attempting to use a power of attorney to transfer the legal or physical custody of a child with the intent to permanently divest a parent of parental responsibility, except by order of a court of competent jurisdiction, is guilty of a felony in the State of Michigan punishable by a fine up to $100,000.00 or up to 20 years in prison, or both. MCL 750.136c(3)(a). It doesn’t matter that the attempted transfer was done or not in exchange for payment of money or other valuable consideration. A person who assists, aids, abets or conspires with a parent to commit this act, including the person receiving the transfer of parental authority, is also guilty of a felony in the State of Michigan punishable by a fine up to $100,000.00 or up to 20 years in prison, or both. MCL 750.136c(3)(c). A parent or guardian could be construed by a prosecutor as permanently divesting legal parental authority to another person if he or she executes a new 180-day power of attorney year after year. If the parent intends to make a transfer into a permanent arrangement, then a proper petition for custody or guardianship must be filed in a court of competent jurisdiction.
However, the execution of a power of attorney transferring parental authority would not constitute a crime under one or more of the following conditions:
- Placement with a relative, a child placing agency, or the Michigan Department of Health and Human Services. MCL 750.316c(4)(a).
- Any lawful placement by a child placing agency or the Michigan Department of Health and Human Services. MCL 750.316c(4)(b).
- Any placement in accordance with the interstate compact on placement of children. MCL 750.316c(4)(c).
- Placement where the child will be returned in less than 180 days. MCL 750.316c(4)(d).
- Placement with the specific intent that the child will be returned, that the placement benefits the child, and that it is based on the temporary needs of the family, including, but not limited to, 1 or more of the following:
- Respite for the child and family. MCL 750.316c(4)(e)(i).
- A vacation or school-sponsored activity or function. MCL 750.316c(4)(e)(i).
- A temporary inability of the parent or legal guardian to provide care for the child due to incarceration, military service, medical treatment, or other incapacity of the parent or legal guardian. MCL 750.316c(4)(e)(i).
These types of power of attorney are useful if a parent or guardian leave the children with a friend or family member while on vacation or military deployment. Absent some sort of legal authority, that friend or family member may not be able to consent to emergency medical care. A delay in necessary medical treatment can be life-threatening in some circumstances. A power of attorney will protect both the temporary guardian and the child from harm or adverse legal consequences. Furthermore, the grant of power can be as broad or as narrow as the parent or guardian sees appropriate (for example, the power of attorney may be limited to emergency medical or dental care only). It is always advisable to consult with a lawyer first to ensure whether a power of attorney fits your situation or whether a more permanent form of guardianship filed in a court of law is appropriate.
If you are considering a temporary power of attorney transferring parental authority or have questions on whether it is appropriate for your situation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.