Things To Consider When a Parent Is Out of Town

Your estate plan may include powers of attorney that allow a trusted person to act on your behalf and advocate for you with regard to medical and financial matters when you cannot do so yourself. But do you have a similar document in place that gives someone the authority to care for your minor children when you are not able to?

A comprehensive estate plan covers contingencies not only for you but also for your minor children. A delegation of parental authority (DOPA), often called a power of attorney (POA) for parents or parental POA, allows you to give a nonparent the legal authority to make certain decisions for your minor child.

Delegating your parental authority to another person in a legal document can help ensure that your child receives the care they need when you are out of town on business or vacation. The document typically does not require a court order and does not supersede your parental rights.

Why Use a DOPA Or Parental POA?

Up until a certain age, your kids rely on you for almost everything. You might not realize just how much they depend on you until you are not there for them.

Even when you leave the kids with a babysitter for a short period, it can quickly become apparent from the long list of instructions you provide just how many important tasks and details a parent is responsible for daily.

As kids grow older and become more independent, they often require less from you. However, until your child reaches age 18, you are legally responsible for their well-being, and there are some things—such as receiving medical treatment or entering into a contract—for which a minor child must obtain parental permission.

A DOPA or parental POA is a document that temporarily allows someone else—known as an agent or attorney-in-fact—to care for your child and act on their behalf similarly to the way you could. This tool is commonly used when a parent is leaving the state or country for a personal or work trip or when a parent is facing incarceration, military deployment, long-term medical treatment, or risk of deportation.

This document does not override or interfere with your parental rights regarding the care, custody, and control of your child, but it does permit a caregiver to act in your stead on important matters like taking them to the doctor, excusing them from school, attending and consenting to school activities, inspecting and obtaining their records, and making decisions during an emergency.

Not having a DOPA or parental POA for your minor child could mean that crucial care cannot be provided in a timely way—or at all—in your absence. It could also mean that in an emergency, the school or some other authority could make a choice based on their policies and procedures about your child’s care that you may not agree with.

Not All Conditions Will Hold Up In Court

Although parents can be highly creative and detailed in structuring conditional gifts, their freedom to impose terms is limited.

In general, courts will not uphold conditions that are illegal, uncertain, unreasonable, impossible, or contrary to public policy. Here are some guidelines parents should consider when they create conditions for their children’s inheritances.

A beneficiary should not be asked to engage in activity that breaks the law or is unconstitutional.
The conditional gift should be executed in clear and precise language. If there is doubt about what actions need to be taken—or refrained from—for the condition to be satisfied, the court could declare the condition void.
There must be a chance that the beneficiary can satisfy the condition. In part, a court’s determination on this matter is based on the circumstances of the beneficiary and the context of the gift.
Conditions that violate public policy are not illegal per se. Instead, they are deemed to harm the public welfare because they are unfair or unreasonable. Historically, many courts have voided on public policy grounds conditions that restrain a person’s right to marry or incentivize divorce.

The way courts interpret a conditional gift based on public policy is not always obvious and can be very fact-specific. It may come down to precedent from past cases and judicial discretion.

Some courts, for example, have refused to enforce conditions contingent upon a beneficiary getting divorced, but enforced marriage conditions based on age and marrying within the same religion. Public policy also varies to some degree by state, so a conditional gift ruled invalid in one state may be found valid in another state.

How a DOPA Works

The legal form you use to give quasi-parental rights to a third party may go by different names in different states.

Minnesota and Idaho, for example, use the term delegation of parental authority. Washington refers to it as a power of attorney for parents. Oregon calls it a power of attorney over a child. North Dakota calls it a power of attorney for care and custody of minor child. And Florida refers to it as a designation of healthcare surrogate for minors.

State law can also vary on the specifics of how the document works. Some states limit a DOPA to a maximum of six months from the date it is signed, after which time a new agreement must be signed. In other states, a DOPA is good for up to one or two years.

States may have different requirements for completing and validating the document. State law might require a DOPA to be notarized before it takes effect, and there may be a requirement to inform the other parent about the agreement, with limited exceptions. If the person who is going to care for your child lives in a different state, you may need to fill out a DOPA form in that state as well.

Despite these differences, DOPAs work similarly in most states and share the following traits:

A separate DOPA needs to be filled out for each minor child.
A parent can withdraw a DOPA at any time.
The person named as attorney-in-fact can be any adult. They do not have to be a family member or US citizen.
The DOPA does not take away your right to make decisions for your child. You can still overrule a decision made by the attorney-in-fact.
DOPAs are not transferable.

DOPA forms typically state that the attorney-in-fact has all of the power and authority that the parent or guardian has (except the power to consent to marriage or adoption). They also provide the option for a parent to delegate to the attorney-in-fact only specific powers and responsibilities that are listed in the document.

Other Considerations For a Parental Power of Attorney

The person you choose to make decisions for your child should be someone you know well and trust. But it may be worth asking if they would make the same choices you would make in the types of situations that could come up.

You cannot expect your attorney-in-fact to be completely aligned with you on every conceivable scenario. While they will probably be able to check with you about a nonemergency decision, they will still need a degree of autonomy to act independently and exercise their best judgment if something unexpected happens and you cannot be reached right away.

Choosing a close friend, family member, neighbor, or another responsible adult with whom you share similar values can help ensure that you are in accord about most important issues.

The person you choose should be somebody your child is familiar with and comfortable around so that your child is receptive to their care and authority. Discuss the appointment of the short-term caregiver with your child and talk about your upcoming trip with them.

Extended time away from a parent can be difficult for a child. Establishing expectations and a schedule of how often you will check in—both with your child and the caretaker—can keep everyone on the same page and ease the apprehension surrounding your absence. You know your kid best, though, and frequent check-ins might make them more anxious.

In addition to emotional considerations, there are some practical points to keep in mind as you get ready to embark on your trip:

Schools, doctors, banks, and other individuals and organizations should recognize and accept the power of attorney. However, double-check to make sure that this is the case before leaving. Your child’s doctor or school may have their own forms that are needed to access records, pick them up from school, or authorize care for them.
Make copies of the DOPA so that the attorney-in-fact can give them to authorities who might need proof that they are in charge of the child. Keep at least one copy for yourself.
Estimate ahead of time how much it will cost to care for your child while you are away and ensure that there are adequate funds to pay for their needs. You may want to give the caregiver money or leave them a credit card.

The attorney-in-fact should also have the following information about your child:

School name and phone number
Teacher’s name
Medical insurance information
Names and phone numbers of healthcare providers
Allergies (food, medicines, and environmental)
Daily routines and activity schedules
Contact information for friends and friends’ parents

Your profession, travel destination, and the type of trip you are taking could potentially put you at risk. The US government encourages travelers to high-risk areas to enroll in the State Department’s Smart Traveler Enrollment Program, develop a communication plan with loved ones, and discuss a plan with them about care and custody of children.

Add An Up-to-Date Estate Plan to Your Travel Checklist

Traveling out of town when you have children can be stressful for them and for you. There is no substitute for a parent’s love and care. But if work or other circumstances keep you away from your children, a DOPA or parental POA might be the next best thing.

A comprehensive estate plan should also cover a permanent guardianship arrangement for your children on the off chance that a worst-case scenario unfolds while you are away.

Part of estate planning is thinking about what could happen to you and putting measures in place to protect your family. Your current estate plan may not address childcare and guardianship issues, or you might need to make updates to your plan to reflect current circumstances, such as the birth or adoption of a child, divorce, or nominating a new guardian in your will.

You cannot protect your children from everything. But you can leave as little to chance as possible with a well-thought-out estate plan. To create or update your plan, schedule a meeting with an estate planning attorney.