Taxation & Estate Planning

Powers of Attorney and Emergency Consent for Children

By Joel A. Schoenmeyer

Yesterday a client called me with an issue that probably arises fairly often.

Client's husband's father lives in a foreign country, and is dying. Client and her husband will go and see him for a couple of weeks, but will leave their minor children at home with a relative.

The issue was, how do you allow this relative to handle medical emergencies that may arise with the minor children? There are a few options:

1. Power of attorney for health care. Section 4-3 of the Illinois Power of Attorney Act states that "[t]he health care powers that may be delegated to an agent include... all powers a parent may have to control or consent to health care for a minor child." Of course, the Illinois statutory form for power of attorney doesn't mention health care for minor children, so inserting specific language in the form may be necessary.

2. Short-term guardian appointment. Alternatively, section 11-5.4 of the Illinois Probate Act allows a parent to "appoint in writing, without court approval, a short?term guardian of an unmarried minor or a child likely to be born. The written instrument appointing a short?term guardian shall be dated and shall identify the appointing parent or guardian, the minor, and the person appointed to be the short?term guardian." The written instrument has to be signed by the parent and at least two credible witnesses. The nice thing about this option is that you can set the actual term of guardianship (like, say, two weeks).

3. Contact your doctor or hospital and obtain a form from them. Here is a sample from Condell Hospital in Libertyville, Illinois.

Option #3 may be the best option -- you don't need to hire an attorney, and if you use your hospital's form, you know that it will be acceptable to them.

Thanks to members of the ISBA Transactional Law listserv who shared some of their ideas regarding this question.

Full post as published by Death and Taxes Blog on February 12, 2008 (boomark / email).