Planning for Children: Name a Guardian Now
A Twin Cities estate planning attorney discusses the benefits of using a delegation of parental authority for your minor child
You may know from prior posts that if you have minor children, you must name a guardian to care for them in the event that you (and any co-parent) are not around to raise them. Generally, you name a guardian in a will, which takes affect after your death.
What if you need to give someone the power to care for a child while you’re still alive?
Minnesota law allows you to sign a delegation granting another the authority to care for your child for a period of time not to exceed 1 year. Signing this delegation does not jeopardize your parental authority but simply grants another the temporary power to act for your child.
What powers can you delegate?
The powers conferred upon the other party through the use of the delegation of parental authority include the care, custody or property of the child. Once restriction is that the other party cannot consent to the marriage or adoption of the child.
What are the benefits of the delegation?
The delegation is a convenient way to allow for short-term custodial arrangements because they can be executed without judicial intervention (e.g. no court) as they only need to be notarized or witnessed to be legally valid. Further, the parent does not give up any authority over the child when signing the delegation of power as the agent can only act in the place of the parent who signed the delegation.
When would you need to use a delegation?
A delegation can be used anytime you need someone else to have the ability to take care of your child.
One common use for the delegation is to grant someone the authority to handle medical needs for a child while you’re away on vacation. For instance, my partner and I went to New York for 5 days and my mother-in-law took care of our daughter while we were away. I signed a delegation of authority allowing her to make medical decisions for our daughter for the week we were gone. Then it expired upon our return. This gave us all peace of mind that in the event of an emergency, my mother-in-law could care for our daughter in our absence.
Another use is for the delegation is for situations where a lesbian couple has a child together. While the biological mother has the right to act on behalf of the baby, the non-biological parent has no rights pending adoption of the child. It can take about 6 months before the non-biological parent is able to adopt the child. During that time, the non-biological parent has no legal relationship to the child, so a delegation is one way to ensure that parent can act if needed.
A third use I’ve seen is in cases where the biological parents of a child are divorced and now dating other people. The boyfriend/girlfriend may spend a lot of time with the child but don’t have the ability to authorize medical care. A delegation can give them that power. Please note that, where there is another legal parent in the picture, the parent executing the delegation must mail or give a copy of the document to the other parent within 30 days of execution. This requirement is not necessary in cases where the other parent does not have parenting time, has supervised parenting time or has an order for protection against him/her.