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.
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.
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.
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.
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.
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.
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.
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.
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.