Planning for Child Custody in Time of Emergency – Keeping the Children Out of Foster Care

Yesterday’s Oregonian detailed the latest in what seem to be an unending series of abuses of children in foster care under the supervision of Oregon’s Department of Human Services (http://www.oregonlive.com/pacific-northwest-news/index.ssf/2013/06/salem_foster_parent_who_abused.html).

What happens when a parent is in a coma after a car accident or medical emergency?  What if a spouse is out of town or unavailable?  Does the parent have a plan in place that provides legal authority for a friend or relative to take custody of the children?  Having children placed in foster care is a nightmare for many parents.  Unfortunately, there seems to be good reason for concern.

What can parents do to protect their children and to avoid the nightmare?  An increasing number of estate planning firms are incorporating a Durable Power of Attorney for Childcare into their estate planning packages for parents.  This document is like a more detailed (and much more legally enforceable) note on the fridge that says who has legal authority to care for children if their parents cannot.  The Power of Attorney for Childcare may cover a wide range of decision-making authority, including powers to make health care and educational decisions.  Most importantly, it contains provisions saying who should have custody of the children.

A Durable Power of Attorney for Childcare is especially important in a family that might be subject to intrafamilial conflict regarding who the parents would want to care for the children.  Maybe Crazy Aunt Joanie thinks that she would be best, but Stable Aunt Jane is who the parents would have really picked.  The Power of Attorney ensures that a family is aware of the parents’ wishes and can come together in time of crisis to care for the children, rather than potentially fighting over them.

For many parents, including myself, our most important “asset” is our children.  We need to make sure we’ve done the proper planning to protect our children.  A Durable Power of Attorney for Childcare is part of every Parents Package estate plan that I prepare.