If you intend to serve as the caretaker for your grandchild, you have more than one way to obtain the legal authority you require. Getting legal guardianship is one option, but it is by no means the easiest nor the most appropriate when the parents are only temporarily absent. A grandparent's power of attorney, signed by the parents, gives you authority to make certain decisions and take certain actions on her behalf. It can be tailored to fit your circumstances, whatever they are.
What Is a Power of Attorney?
A power of attorney is a legal document that has nothing whatsoever to do with lawyers. You can often draft one up without having a lawyer, and you don't have to be a lawyer to be named in someone's power of attorney. To confuse matters even further, the document is actually called "power of attorney," but many people use the term to refer to the person named in the document, as in "I am power of attorney for my brother."
What exactly is a power of attorney? It is a written document, often a form you can fill out, in which you name someone to act in your place in specified circumstances. In most states, it must be signed and notarized by the person making it.
In a general power of attorney, you can name someone to manage all of your affairs, but usually powers of attorney (also called POAs) are more limited and specify the exact transaction the other person has authority to undertake in your name. For example, you may write up a power of attorney giving your brother authority to sell your 2010 Chevy truck for you. That means that he acts as your agent in the transaction. He can accept on your behalf an offer to buy the car and can fill out and file all of the necessary paperwork to accomplish this.
POA for Grandparents
A power of attorney written by a parent can give a grandparent the authority to act on the parent's behalf to take care of a grandchild. While this is a simple POA like any other, it is sometimes called a grandparents' power of attorney. It is essentially a legal permission letter for grandparents to take a child to the doctor or make other caretaking decisions on her behalf. A power of attorney for the child gives the grandparents the legal authority that they otherwise would not have to act in the place of the parents. For example, if parents are going on a vacation and leaving their child with her grandparents while they are gone, a POA for grandparents authorizes them to get her medical treatment in case she is sick or in an accident.
A temporary POA for grandparents can also give them legal authority to do other things and make other decisions for the child that parents would usually make. For example, a grandparents' power of attorney might authorize them to enroll the child in school, consent to school outings or school sports, and arrange for the child's dental and psychological treatment.
Who Creates a POA for Grandparents?
Only parents or those with legal guardianship over a child can give grandparents' a power of attorney to take temporary care of the child. One parent alone can sign the POA if that parent has been given legal and physical custody of the child, or no such order exists but the child lives with that parent most of the school year. But if the parents are married and living as spouses, both must sign a POA for the child. Likewise, both must sign where the court orders shared parenting and parents share legal custody.
Note that a grandparent POA should only be created if a parent is unable to care for the child, either temporarily or for the longer term. This might be because of a serious illness or physical or mental condition, or an inability to provide financial support or parental guidance. A homeless parent or one entering a residential treatment program for substance abuse can create a POA for grandparents.
However, you can't create a grandparent POA if someone has started a proceeding to adopt the child, a divorce proceeding, an annulment, any proceeding to determine whether the child is neglected or abused, or the child is the subject of a temporary custody order for emergency medical treatment.
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