Power of Attorney

Power of Attorney (POA) is a procedure that allows anyone with custody of a minor child to delegate certain parental powers to an agent. An agent is a person willing to care for the child. A power of attorney is valid for up to one year. This process is done completely outside of the court system and can be used as an alternative solution to a more permanent guardianship process.

The information on power of attorney is based on the 2011 Wisconsin Act 87, Delegation of Parental Powers by Power of Attorney and Wisconsin Statute section 48.979. The following information is of a general nature only, and is not designed to provide legal advice to any specific individual or case.

Who can use a POA?

A power of attorney may be initiated by a parent, legal guardian, or any person with custody of a minor child (hereinafter “parent”). Any parent/s or legal guardian/s with legal custody must consent to the power of attorney for it to be valid. Consent is not limited to the person with physical custody of the child. Whether the parents are married, unmarried or divorced, if they share legal custody, both must consent to the power of attorney.

Why might a parent want to use a POA?

If a parent is going to be unavailable to care for the child for a short period of time, a parent might want to transfer some parental rights to an agent, or a person who can take over the caregiver responsibilities for that period of time. Some reasons for entering into a power of attorney are if the parent or legal guardian is being deployed, facing incarceration, entering a rehabilitation facility, or is being hospitalized.

What does a POA do?

A power of attorney allows a parent or legal guardian to transfer certain parental rights to the agent, such as, the right to decide about the child’s medical care, schooling and other day-to-day care decisions. Delegating some of these powers to an agent does not deprive the parent of his or her own powers regarding the care and custody of the child.

What if the parent changes their mind?

A power of attorney can be revoked by a parent at any time. A parent or legal guardian may do this by expressing their intent to end the power of attorney in writing and notifying the agent of their intent to do so. If the parent does not revoke the power of attorney, it will automatically terminate one year from the date the powers were transferred.

What are the limits of a POA?

A POA is revocable at anytime by the parent or agent, as a result, it is not always accepted. For instance, hospitals are reluctant to accept an agents approval for major medical decisions, Social Security and other federal benefits will not be transferred to the agent, and it is unclear whether school districts will allow the child to enroll based on the agent’s home address. Another limit of the POA is that it expires after one year or upon the parent’s death, so for example, if a parent is terminally ill this would not be a proper response to the child’s future needs.

What are the steps to get a POA?

A power of attorney is entered into completely outside of the court system. A parent and an agent must agree on what parental powers will be transferred and complete a form that complies with Wis. Stat. 48.979(2). It is recommended that both parties sign the form in the presence of a notary public.

What rights do the parent keep?

The parent can determine what rights he or she would like to transfer to the agent but the most common are the right make minor medical decisions, enroll the child in school, and to make day-to-day caregiver decisions. Rights that cannot be transferred are the rights to consent to the marriage of the child, consent to enlistment of the child in the military, consent to the adoption of the child, or consent to terminate parental rights. The caregiver under the power of attorney will not be allowed to limit the parent’s visitation or other parental rights while the agreement is in effect. The POA is temporary and revocable at any time. The process is fairly new to Wisconsin and, as a result, it is not uncommon for the agent to face certain challenges when approaching certain agencies for assistance, such as Social Security or other public benefits agencies.

Things to consider when making this decision:

Selecting an agent takes place outside of the court system. There is no external review of the potential caregiver or agent. Before granting a power of attorney, it is very important for the parent or legal guardian to do their own screening of the agent who will be responsible for the well being of the child. Make sure that it is someone that you trust and has experience in order to act in your child’s best interest. Wis. Stat. 48.979(3)(b)(2) also lists some critical factors that you should consider before transferring any parental rights, such as the personal characteristics, health and finances of the proposed agent, the physical environment and safety of the agent’s home and, based on that assessment, the proposed agent’s fitness to provide for the care and custody of the child and ability to meet the child’s needs.
A parent, legal guardian, or person with custody of a child may not use the power of attorney to delegate parental powers to an entity such as foster care, a group home, or an inpatient treatment facility. These types of placements may be made only by a court order.
An agent who is delegated parental powers does not have to obtain any sort of child care license. This process is done completely outside of the court system and gives the parent great discretion in choosing the agent.
A delegation of powers does not prevent an agency, a sheriff or police department from investigating a report of suspected or threatened abuse or neglect under Wis. Stat. 48.981, the child from being taken into and held in custody under Wis. Stat. 48.19 to 48.21 or 938.19 to 938.21, an intake worker from conducting an intake inquiry under Wis. Stat. 48.24 to 938.24, or a court from exercising jurisdiction over the child under Wis. Stat. 48.13 or 938.13.
If an entity is facilitating the delegation of powers by a parent to an agent, that entity must obtain specific information regarding the proposed agent and that information must meet certain requirements for the person to become an agent. Wis. Stat. 48.979 (1)(b).
NOTE: There are separate rules for the delegation of powers regarding the care and custody of an Indian child. Please see Wis. Stat. 48.028(5)(a) for guidance.

This material may be freely reproduced and distributed. However, when doing so, please credit Kids Matter Inc. This information is current through March 19, 2013.