Power of Attorney Can Help Grandparents Get Authority To Care for Grandchildren

I am the grandmother of four-year-old Michael. My daughter and his father are not married. I love my daughter, but she is unreliable and has been involved with drugs. What can I do to make sure Michael is protected?

One way to help protect Michael is to get a power of attorney so you have rights and responsibilities regarding your grandson’s care.

What is a power of attorney?

Generally, a power of attorney gives one person certain rights to act on another’s behalf. For example, if your ailing aunt gives you her financial power of attorney, you can act on her behalf to take care of her financial matters while she is ill. Similarly, you can get a power of attorney to so you have the authority to handle certain matters regarding your grandson while his parents are unable to fulfill their roles as his guardians.

A grandparent’s power of attorney gives you rights and responsibilities regarding the child’s care, physical custody, and control, including the ability to:

• enroll the child in school;

• get educational and behavioral information about the child from his school district;

• consent to all school-related matters regarding the child; and 

• consent to medical, psychological, or dental treatment for the child.

Does this grandparent’s power of attorney have any limitations?

Yes. The grandparent’s power of attorney does not: 

• grant the authority to consent to the child’s marriage or adoption;

• affect the parents’ rights in any future proceeding concerning the child’s custody or the allocation of parental rights and responsibilities for the child’s care; 

• grant legal custody to the attorney-in-fact (the grandparent).

My daughter says she will sign a power of attorney, but I do not know where Michael’s father is. What do I do?

To create a legally binding power of attorney, the document must be signed and executed by both parents if they are married and living together, or if the child is the subject of a shared parenting or custody order. However, it need not be executed by both parents if the nonresidential/non-custodial parent does not have the right to be notified of the child’s relocation, or if parental rights have been terminated, or if one of the parents cannot be located. In the situation you describe, your daughter’s signature may be enough.

What must I do to make sure the power of attorney is legal?

Once you’ve determined whether the power of attorney must be executed by one or both parents, the parent(s) granting the power of attorney and the grandparent must sign the power of attorney document. Next, the signatures must be notarized and the child’s Social Security number must appear in the document. 

If one of the parents does not have legal or residential custody of the child, that parent generally must be notified about the power of attorney by certified mail no later than five days after the power of attorney was created. In your situation, however, notice need not be given to Michael’s father if he cannot be located. 

You must give a copy of the power of attorney to Michael’s school. Also, within five days after the power of attorney is created, your daughter (and Michael’s father, if located) must file a copy of the signed and notarized power of attorney with the juvenile court of the county where you (the grandparent) live (or any other court that may have jurisdiction over Michael). 

When does this power of attorney end?

The power of attorney is terminated when:

• the person who created the power of attorney revokes it one year after the document was  notarized;

• the child stops living with the grandparent;

• a court order terminates the power of attorney; or

• the child or the appointed grandparent dies. 

If the person who created the power of attorney (in your case, your daughter) revokes it in writing, a copy of the revocation must be filed with the court within five days after the revocation. Also, when a power of attorney is terminated for any reason under the law, the grandparent must notify, in writing: 

• the school district in which the child attends school;

• the child’s health care providers; 

• the child’s health insurance coverage provider; 

• the court in which the power of attorney was filed; and 

• the parent who is not the residential parent and legal custodian, but who is required by law to receive notice; and 

• any other person (or entity) with an ongoing relationship with the child or grandparent who might reasonably rely on the power of attorney unless notified of the termination.

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.