So, your children have asked you to take care of their children for a week while your children are on their first vacation without children. You are looking forward to the bonding time with your grandchildren. Everything is going well until the third day when your granddaughter says she is not feeling well. You take her to the pediatrician. The pediatrician tells you that it is serious and that your granddaughter needs to go to the hospital. Can you, as a grandparent, admit your granddaughter into the hospital? Can you give an informed consent to the hospital staff to care for your granddaughter? Can the staff at the hospital consult with you about the medical issues?
Some states, like New York, have passed detailed legislation to deal with these issues. It involves a method of designating a person to exercise parental rights. In Oregon, we have a much briefer statute entitled, “Delegation of Certain Powers by Parent or Guardian” ORS 109.056. The first two sections read as follows:
“(1) Except as provided in subsection (2) or (3) of this section, a parent or guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months any of the powers of the parent or guardian regarding care, custody or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward.
(2) A parent or guardian of a minor child may delegate the powers designated in sub-section (1) of this section to a school administrator for a period not exceeding 12 months.”
The remainder of this statutory provision deals with the servicemember-parent who is on duty protecting our country. These provisions are not discussed here.
A Power of Attorney is a written document that complies with Sections 127.005 to 127.045 of the Oregon Revised Statutes. Most of us are familiar with Powers of Attorney which are prepared and signed as part of any good estate planning program. The Powers of Attorney used in estate planning can be as broad or as narrow as the principal desires. It can cover one bank account or all of principal’s assets. The only real requirement is that it be in writing. A notary is not required. The same is true with the Power of Attorney referred to in ORS 109.056.
Except for the requirement that it be in written form, the provisions delegating certain powers by parent or guardian are up to you. As a parent, you can be as general as you want, or simply provide that the agent under the power is able to make any decision that you are able to make as a parent or guardian, without listing all the areas that could be covered. In other words, you can list each and every area of decision and grant or limit powers with respect to each of those areas, or you can simply provide that the agent to whom you delegate the powers can exercise any of the powers regarding decision-making that you could make if you were present to make the decision.
Under Oregon law, a Power of Attorney to Delegate Powers of a Parent or Guardian is only valid for six (6) months from the date that it is signed. After the six months expires, a new Power of Attorney must be executed. This is different than the normal Power of Attorney that is used for estate and business planning. There is no time limit on those Powers of Attorney.
The principal (the person granting the power) should give only one agent (the person to whom the power is given) the power at any one time. The principal can designate an alternate agent if the principal thinks that is appropriate. Should both parents execute a separate power? We think so, and the Powers should be identical in order to avoid conflicts. Of course, if the parents are no longer married, it is certainly possible that each would execute separate Powers of Attorney to Delegate Powers of a Parent or Guardian that would be in conflict. Oregon’s statute does not set up a system to determine which Power of Attorney is to be enforced.
Please note that unless limited, the agent is authorized to exercise any parental rights, not just those dealing with health. This includes schooling, religion, athletics, and food, just to name a few.
It is important that parents of minors not leave home without executing a Power of Attorney to Delegate Powers of a Parent or Guardian.
Merritt S. Yoelin has advised clients for more than 40 years about how to grow their businesses from the beginning to the end, with a heavy emphasis on reducing the tax burden at all stages.
Merritt may be contacted at msy@samuelslaw.com.
