Alternatives to Guardianship for a Child

Alternatives to Guardianship for a Child

What if you only need to help care for a child for a short time?  Alternatively, how can you care for a child while you are waiting for guardianship to be completed?  A power of attorney may be an alternative to guardianship.

What is a power of attorney for a child?

A parent (or legal guardian) can use a power of attorney to delegate many of their parental powers to another person.  The person appointed by the power of attorney is known as the “agent.”

The power of attorney can give the agent power over the “care, custody, and property” of the child.  A parent can delegate the right to enroll the child in school, gain access to records for the child, and make decisions about school activities.  The parent can also authorize the agent to make medical decisions for the child.  The parent can authorize the agent to make decisions regarding “any other activity, function, or treatment that may concern the child.”

Using a power of attorney to enroll in school

The agent under the power of attorney can register the child for school.  Normally, the address of the parents will decide the correct school district for the child.  A copy of the power of attorney should be provided to the child’s school.  The school may have a process in place for allowing residency based on the address of the agent.  Alternatively, you may need to seek a waiver of the residency requirement to enroll the child based on the agent’s address (if it is in a different school district).

Once the school receives a copy of the power of attorney, the school should communicate about the child with both the parents and the agent.  If the power of attorney is withdrawn or expires the school should be notified.  Once the power of attorney ends the school cannot continue to share information with the agent about the child.

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Limitations on the powers of the agent

There are specific exceptions to the powers a parent can delegate with a power of attorney.  A parent cannot delegate the authority to consent to marriage of the minor.  The parent cannot use the power of attorney to consent to the adoption of the child.  The power of attorney cannot authorize the performance or inducement of an abortion.  Finally, the power of attorney cannot authorize the termination of parental rights.

Does a power of attorney limit the parents’ rights?

No.  A power of attorney does not terminate a parent’s rights regarding the child.  The parent can still make decisions for the child.  The parent still has the right to see the child.  The parent has the right to custody of the child.  Ideally, the parent and the agent will work together.  Having two different individuals making decisions for the child can be difficult for the child.  This can also be confusing for the doctors and schools relying on the power of attorney.

Power of attorney is limited to one year

The power of attorney cannot last for longer than one year.  If the parent needs to delegate powers beyond a year, a new power of attorney must be signed every year.  A power of attorney cannot be used for the purpose of avoiding or giving up parental responsibility for the child.

An exception to the one year limit exists for military personnel who are deployed for longer than a year.  In those instances, the power of attorney can last for the length of the deployment, plus thirty days.

The parent can revoke the power of attorney

The parent has the right to revoke or withdraw the power of attorney at any time.  If the parent revokes the power of attorney, the children are to be returned to the parents as soon as reasonably possible.

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Requirements for the power of attorney

The power of attorney must be signed before a notary.  Missouri law states certain information must be included in the power of attorney:

  1. The full name of the child;
  2. The date of birth of the child;
  3. The full name and signature of the agent (person being appointed);
  4. The address and telephone number of the agent;
  5. The full name and signature of the parent or legal guardian.

The power of attorney appoint broad powers to the agent.  Alternatively, the power of attorney can specifically identify exactly what the agent can and cannot do.  The power of attorney must also state one of the following:

(For an agent with broad powers)

“I delegate to the attorney-in-fact all of my power and authority regarding the care, custody, and property of each minor child named above including, but not limited to, the right to enroll the child in school, inspect and obtain copies of education and other records concerning the child, the right to give or withhold any consent or waiver with respect to school activities, medical and dental treatment, and any other activity, function, or treatment that may concern the child.  This delegation shall not include the power or authority to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child.”

Or, the power of attorney must state as follows:

(For an agent with specific powers)

“I delegate to the attorney-in-fact the following specific powers and responsibilities (insert list).  This delegation shall not include the power or authority to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child.”

The power of attorney must also state how long the delegation of authority is being made (up to a year).  Finally, the power of attorney must include an acknowledgement that it can be revoked at any time.

Questions about a guardianship or conservatorship? 

Schedule a FREE Consultation.

Guardianship lawyer Tim McCurdy

Guardianship requires a lawyer who will listen to you.  You need a partner to help guide you through the complex guardianship process.  Tim McCurdy will take the time to learn about your unique situation to help look for a solution.

LASHLY & BAER, P.C., is a mid-size Missouri law firm with deep roots in both Missouri and Illinois. As a full-service firm, we have developed a very diverse and extremely loyal base of local, regional and national clients.

Our lawyers work with clients ranging from individuals, large and small businesses, government agencies, hospitals and more.  Our members have served in the United States Senate, in the United States House of Representatives and many other prominent positions across Missouri and the United States.

Our attorneys share a commitment to and a passion for our community, and we take pride in helping individuals, businesses and government entities across Missouri and Illinois.