Legal Guardianship for Foster Parents

State laws regarding foster parents and a general or specific power of attorney vary. In general, a specific power of attorney or a general power of attorney must always be obtained through the court.

Custody Cases

At the outset of most custody cases, the court appoints an attorney power of attorney to represent the minor whose parents have been deemed unfit. This general power of attorney authorizes the court-appointed attorney to make a wide range of decisions on behalf of the child that cover everything from medical services to visitation, education and finance.

In most states, when foster parent or kinship cases exist, the court-appointed attorney maintains the power of attorney until such time as the court appointed responsible parties are named guardians. At this point, the guardian can apply to the court for a general or specific power or attorney.

When the guardianship is confirmed and the power of attorney granted by the court, the guardian becomes the primary caregiver and the court is no longer involved until petitioned again.

Attorney in Fact

Under the terms of a general power of attorney, the guardian is deemed the attorney in fact. The attorney in fact has full legal authority to make decision regarding the foster child as long as the child is a minor. However, because state laws do vary, it is recommended that the guardian check with an attorney or state social services department to ensure they are authorized to make important decisions about education, finances, health, visitation rights and medical care.

The power of attorney is accompanied by a new level or responsibility. It is always recommended that guardians fully record all financial transactions regarding their ward and that they keep an accurate history of all important decisions regarding healthcare, medical treatments and diagnostic procedures.

A specific power of attorney allows the guardian to manage the specific activities of the minor. For example, a specific power of attorney could be obtained in order to manage the child’s personal financial matters. In most cases, the court will award the guardian the broader range of authority contained in a general power of attorney.

From the court’s prospective, the general power of attorney solidifies the guardian’s authority to make the important decisions that can impact the child for the rest of his or her life. The guardian’s power of attorney takes the court and the court-appointed attorney out of the equation.

In many states, this allows the foster child and the guardian to move to another area, change the visitation privileges and change schools. Guardians with power of attorney can also make gifts in the name of the minor or halt medical treatments. Prior to obtaining a power of attorney, these decisions must be approved by the court. In this sense, the relationship between child and guardian has moved to a more independent level and the guardian can make decisions based solely on the best interests of the minor.