A thoughtful question came up in a recent estate planning conversation.

The family had already taken the most important step: the parents had legally named the person they wanted to serve as guardian for their minor child if something happened to both of them.

For parents with minor children, this is one of the most important decisions to address in an estate plan.

Who do you trust to raise your children? Who shares your values? Who will provide the home, stability, and love you would want for them?

And just as importantly, have you properly put that choice into your estate plan so there is clear direction about what you wanted?

But the conversation raised a good follow-up question.

What happens during the period between an unexpected emergency and the time the long-term guardian is able to step in?

For example, what if both parents were seriously injured while their child was staying with Grandma and Grandpa? Would the grandparents have authority to continue caring for the child? What happens if medical or other important decisions need to be made?

Those are reasonable questions. And they point to the difference between planning for a child’s long-term care and planning for a temporary situation.

Your Long-Term Guardian Is the Foundation

Let’s start with the big one.

If you have minor children, your estate plan should clearly name the people you want to care for them if something happens to you.

Don’t leave that decision unanswered.

If both parents die and there is no legally effective nomination, a court may ultimately have to determine who should serve as guardian without clear direction from Mom and Dad.

That’s why we spend time with parents discussing this decision as part of their estate plan.

That is your long-term plan, and it should come first.

Once that foundation is in place, there is a second, narrower question:

What if you’re still alive, but temporarily unable or unavailable to care for your children?

That’s where temporary authority can be helpful.

Michigan Allows Parents to Give Someone Temporary Authority

Michigan law allows parents to give another person many of their parental powers for up to 180 days.

In short, parents can give Grandma, Grandpa, an adult child, sibling, or another trusted person temporary authority to care for their child and handle certain decisions.

This can be a very useful planning tool.

But there is a practical consideration. The authority generally lasts no more than 180 days.

You could prepare a new authorization every six months. For most families, however, that probably isn’t necessary.

I think it makes more sense to pick the times when having temporary authority would be especially helpful.

When Does Temporary Authority Make Sense?

There are certain situations when parents may want to consider it.

Maybe Mom and Dad are taking a two-week trip overseas while the children stay with their grandparents.

Maybe a parent is preparing for major surgery, and there is a possibility of an extended hospital stay or recovery.

Perhaps both parents are traveling together for work.

Maybe the children will be staying with grandparents or other relatives for an extended period.

A parent serving in the military may face a deployment.

There can be other circumstances where parents know they will be unavailable or difficult to reach and want another trusted adult to have clear authority to act.

Those situations are different from Grandma watching the kids while Mom and Dad go out to dinner.

Temporary authority doesn’t need to become another form parents feel obligated to constantly renew.

It’s a planning tool to use when the circumstances make it worthwhile.

What Happens If You Don’t Have Temporary Authority in Place?

This was really the heart of the question.

Suppose an unexpected accident happens and the children are already safely staying with Grandma and Grandpa. The parents didn’t anticipate the emergency, so there is no temporary authorization in place.

Does that automatically mean the children are removed from their grandparents and placed in foster care?

No. It isn’t that automatic.

There isn’t a special form that every grandparent, family member, or babysitter must have whenever they care for a child.

What happens will depend on the circumstances.

Are the children safe where they are? Are grandparents or other family members available? Can either parent communicate? Who have the parents identified as their long-term guardian? Does someone need immediate legal authority to make decisions?

If a legal guardianship becomes necessary, Michigan courts have an “emergency guardian” procedure that can address an immediate need for a guardian while the longer-term situation is being sorted out.

So the concern is legitimate, but the absence of a temporary authorization doesn’t automatically mean children are headed into foster care.

The temporary authorization simply provides another layer of planning that can make an already difficult situation easier.

Two Different Jobs

The easiest way to understand this is that these planning tools have two different jobs.

Your long-term guardian nomination answers the big question:

“If we’re gone, who do we trust to raise our children?”

That decision belongs in a properly prepared estate plan. For parents of minor children, it should be a priority.

A temporary parental authorization answers a narrower question:

“If we’re temporarily unavailable or unable to make decisions, who should have authority to take care of things for our children?”

You don’t necessarily need that authority in place 365 days a year.

But there are times when it makes very good sense.

Simple Lesson

Start with the most important part.

Make sure your estate plan legally identifies the people you want to raise your children if something happens to you.

Once that foundation is in place, temporary authority can provide an additional layer of protection when the circumstances call for it.

A major trip. Surgery. An extended absence. A situation where your children will be living with someone else for a period of time.

Good planning doesn’t mean trying to anticipate every possible emergency.

It means taking care of the big decisions first and then using additional planning tools when they make sense.

Action Step

If you have minor children, start by reviewing the guardian nomination in your estate plan.

Then, when you have a significant trip, surgery, extended absence, or another situation where someone else will be caring for your children, ask one more question:

Would it be helpful for that person to have temporary legal authority while we’re unavailable?

Sometimes the answer will be “no“.

Sometimes it will be “yes“.  If the answer is “yes“, here is a template you can print and use for temporary legal authority.

The important thing is knowing that the option is there.

 

If this topic raises questions for you or your family, feel free to call (517) 548-7400 or contact us online: https://www.michiganestateplans.com/contact-us

Disclaimer: Michigan law and individual circumstances vary. This article is for general informational purposes only and is not legal advice. Consult an estate-planning attorney about your specific situation.