By Rändi L. Othrow & Dyann L. Hafner
Nov. 2, 2011 – 2011 Assembly Bill 30, as amended, has passed the legislature and now awaits Gov. Walker’s signature. The new law will provide a legislatively sanctioned power of attorney (POA) for parents with legal custody to delegate parental authority to a third party. This legislation expands the legal tools available to parents who need assistance in caring for their children.
Current tools provide limited options
Currently, a parent who needs parenting assistance has limited options. A parent can commence a guardianship proceeding under one of Wis. Stat. sections 48.977, 48.978, or 54.10(1); can file a petition in Children’s Court for a child in need of protection or services under Wis. Stat. section 48.13(4); or can seek a voluntary out-of-home placement under Wis. Stat. section 48.245. Current Wis. Stat. section 48.62 prevents a person from accepting care and maintenance of a child without first having a foster care license.
Under 2011 Assembly Bill 30, a parent will be able to draft a POA document delegating full or partial parental authority to a third person without court or social services involvement and the parent will maintain full control over the arrangement subject only to the other parent’s equal authority, provided that the other parent also has legal custody.
Limitations on using a parental power of attorney
There are limits to the use of a Parental Power of Attorney under the bill:
The POA delegation may not exceed one year.
The POA may not delegate the power to consent to marriage, adoption, abortion, termination of parental rights, or to enlistment in the U.S. armed forces.
The POA may not be used to place a child in a foster home, group home, or inpatient treatment facility.
The POA may not be used to prevent a child abuse or neglect investigation, to prevent an intake worker from taking the child into custody, or to prevent a court from taking jurisdiction under Wis. Stat. sections 48.13 or 938.13.
The POA may not be used for a child and family who are subject to the jurisdiction of the court under chapters 48 or 938 unless the court approves the delegation.
The POA must be properly executed. The bill does not specify what constitutes proper execution, but it does provide a POA form, which, if substantially conformed to, is considered properly executed.
The parent executing the POA document must have legal custody and both parents must sign if both have legal custody.
A parent who has delegated his or her powers may revoke the POA document in writing at any time, except with respect to acts already taken in reliance on it.
If the child is an Indian child, the bill provides that the delegation under the POA is not valid unless the written document is executed before a judge and the judge certifies in writing that the terms and consequences were fully explained in detail to and were fully understood by the parent in English or other language the parent understands. The bill is silent on how this procedure will be effectuated.
The agent is a permissive, rather than a mandatory reporter of child abuse or neglect under Wis. Stat. section 48.981.
Creating a uniform, legal mechanism to delegate parental authority
The primary goal of this legislation is to create a uniform, legal mechanism for parents to use to temporarily delegate legal decision-making and care-taking responsibilities of their children to another responsible, competent adult. Only a child’s parents may make the decision to delegate the care and custody of the child on a temporary basis to another person.
This legislation will provide a valuable planning tool for attorneys who practice in family or children’s law. Parents struggling with medical, emotional, or addiction issues may designate an appropriate adult to care for their children as may parents who are sentenced to jail, are in the military, or are away from home because of other responsibilities. A parent of a child with a particular talent that requires training or nurturing at a place away from the parents also may delegate child care and supervision to another responsible adult.
Attorneys should proceed cautiously when advising parents
Although this legislation will be useful for helping clients make arrangements for the care of their children during required absences, family and children’s law practitioners need to proceed cautiously. Under the proposed legislation, the care of children by others under the POA will be unmonitored by any child welfare agency or court.
The Department of Children and Families is authorized to promulgate rules to establish monitoring, training, and screening requirements for organizations facilitating the delegation of parental authority and their proposed agents, and facilitating organizations are required to do caregiver background checks of proposed agents under Wis. Stat. section 48.685. However, with or without a facilitating organization, children may in some situations be legally placed with willing but underprepared or incapable caregivers under a parental POA document.
Because the lawyer drafting these documents for parents may be the only advisor, it may be wise to ask about the proposed caregiver’s living situation, such as: Who will live in the same home as the caregiver and child? Does the child have special needs?
To provide good counsel to parents in distressful situations, it also would be wise to, at a minimum, independently run a CCAP and sex offender registry check on the proposed caregiver and all other adults living in the household.
In addition, while the power of attorney form supplied in the legislation may permit the parental agent to obtain medical care for the child, the form does not include a release giving the caregiver access to medical records. Attorneys may help parents avoid potential problems by drafting consents for release of medical information in tandem with the proposed parental POA document.
About the authors
Rändi L. Othrow, Univ. New Hampshire 1989, is a family lawyer in McFarland and the immediate past chair of the State Bar’s Children and the Law Section. Dyann L. Hafner, U.W. 1982, is a Dane County assistant corporation counsel, Madison.