Dear Mr. Premack: My daughter is a single mother. Her son is eleven. To keep her job, she has to transfer to another city for a year. She is willing to leave her son with us for the year so he won’t be uprooted. Do we need to take any legal action to be his guardians, or do something so that we’ll be the ones who can enroll him in school? What if he needs medical attention during the year? How are we recognized as having say-so instead of his mother? – RD
There are ways for you to gain temporary legal authority regarding your grandson. However, the first legal issue revolves around the definition of “single parent”. Is your daughter divorced from his father? Is he deceased? Is there no father of record? When a court has granted the father certain custodial rights, the court’s order must be honored or amended by the court.
A relatively new Texas law allows your daughter to grant you legal authority over her child in a written document that meets certain strict legal standards. However, if there is a court proceeding already in place (like a divorce decree specifying the father’s rights) then the court must approve the authorization agreement before it is effective.
If there is NO court proceeding already in place (because her husband is deceased or there was no father of record) then the authorization agreement is privately handled without court approval.
Your daughter wants to appoint you, the grandparent, as the authorized party. That is fortunate, since the law states that the authorization agreement can only be between the parent and either a) a grandparent, b) an adult sibling, or c) and adult aunt or uncle. She could not, for instance, use the agreement to give authorization to her best friend.
The agreement can assign to you some very specific and very broad powers. You can be authorized to:
Make your grandson’s medical, dental or psychological decisions (but, for a female grandchild, the law forbids you to be involved in birth control decisions);
Obtain and maintain his health insurance and automobile insurance (if he was old enough to drive);
Enroll him in day-care or in public or private school, and allow him to participate in extracurricular and athletic activities;
Give him permission to obtain a learner’s permit, driver’s license, or state-issued identification card if he was old enough to drive);
Allow him to get a job; and
Apply for and receive public benefits for him, if he qualifies.
You should consult with a Certified Elder Law or Family Law attorney about preparing the authorization agreement. If there is no court involved, you can review the questionnaire for the “parental authorization” document at the Virtual Online Law Office on http://www.Premack.com for more details. The agreement must among other things, include a) a specific warning and disclosure, b) a statement that the parent may terminate the authorization agreement and resume custody, possession, care, and control of the child on demand. Your daughter may, at any time, change her mind, revoke the agreement, and regain legal control over her son.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, December 2, 2011