Friday, December 8, 2006

Case Law Development: Using a Power of Attorney to Assign Visitation Rights

May a parent exercise a power of attorney to designate other family members to exercise that parent's visitation rights?  The answer is not terribly clear under most state law, but under Idaho's statute providing for a power of attorney to delegate parental powers, the answer is much clearer according to the Idaho Supreme Court. That case involved a father who, while serving military duty in Iraq, had assigned his visitation rights to his parents.  Mother argued that the Idaho statute should not be interpreted to allow such a designation, as it "contravenes the purpose of the power of attorney statute and removes from the courts the power to scrutinize such decisions prior to the designation."  The Supreme Court of Idaho interpreted the statute according to its literal wording and found that it did indeed provide him authority to designate his visitation rights.  The Idaho statute, expressly allows for parents to create temporary guardianships through execution of a power of attorney for a period of up to six months. 

What makes this case easy for the court is the presence of the statute allowing appointment of a temporary guardian through the power of attorney.  The statute is modeled on 5-104 of the Uniform Probate Code, which has been adopted by at least18 states. (See the National Center for State Court's listing or Cornell Law School's LII Uniform Probate Code locator)  For states without such a statute, it would be unclear whether a parent would have the ability to designate a temporary guardian without a court order.  Some states provide for the use of POAs for medical or educational purposes only.  A 2002 student comment in the Journal of the AAML surveys this and other state guardianship provisions.

Webb v. Webb, 2006 Ida. LEXIS 152 (November 29, 2006)
Opinion on the web (last visited December 4, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/12/case_law_develo_1.html

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