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What Legal Documents Will You Need to Raise Your Grandchildren?

March 31, 2019
David Parker, Esq.
David Parker, White Plains and New City NY Estate Planning Attorney
David Parker, Esq.
David Parker is an attorney who specializes in Estate Planning and Elder Law and has been practicing law for 30 years. Be it Wills, Trusts, Powers of Attorney, Health Care Proxies, or Medicaid Planning, David provides comprehensive and caring counsel for seniors and their families. A large portion of David’s practice is asset protection strategies so that families do not lose their hard earned savings to nursing home care costs. He also handles probate administration for the settlement of estates.
While there are differing reasons for this, ranging from drug use or inability to care for the child, various legal issues arise when grandparents are the primary caretakers.

It is not unusual today to see grandparents rearing their own grandchildren. Legal documents will be needed, according to the article “Grandparents Raising Grandchildren” that appears in the Record Herald. Most importantly, without the correctly prepared legal documents, grandparents will not be able to enroll the children in school or make important medical decisions on their behalf.

There are some options available to give grandparents the legal authority needed to make decisions, as they rear their grandchildren.

Grandparent Power of Attorney. If the parents of the child are living and their whereabouts are known, the parents and grandparent may execute a document known as a grandparent power of attorney. This allows the grandparent to legally manage a number of tasks:

  • Enroll the child in school
  • Obtain educational and behavioral information about the child.
  • Consent to all school-related matters, like trips, after-school activities, etc.
  • Consent to any medical, psychological or dental treatment for the child.

A grandparent power of attorney needs to be signed by the child’s parents, signed by the grandparents, be notarized and filed in the juvenile court of the county, where the grandparent lives. It is possible that the juvenile court may refuse to accept the Power of Attorney, if it believes that it is not in the child’s best interest.

A grandparent Power of Attorney is temporary, and it can be revoked at any time by the child’s parents. It also terminates immediately, once the child no longer lives with the grandparent.

Caretaker Authorization Affidavit. If the child is living with the grandparent and the grandparent has tried but failed to locate the parents, the grandparent may execute a caretaker authorization affidavit. This allows the grandparent to:

  • Exercise care, physical custody and control of the child.
  • Enroll the child in school.
  • Discuss the child’s educational progress with school officials.
  • Consent to medical, psychological or dental treatment for the child.

This document must be signed by the grandparent, notarized and filed in the juvenile court of the county, where the grandparent resides. Just like the grandparent Power of Attorney, the juvenile court may refuse to accept the caretaker authorization affidavit, if it believes it is not in the child’s best interest. The caretaker authorization affidavit is also temporary and terminates when the child no longer lives with the grandparent.

Legal Custody Proceeding. For a grandparent to obtain permanent custody of a child, grandparents need to file a complaint asking for legal custody to be granted to them. This is permanent, and also the most difficult option to obtain. An award of legal custody to the grandparents gives them the same rights as the parents while, at the same time, removing the rights of the child’s parents. The person who has legal custody may make all important decisions for the child, including educational and medical decisions.

If you are considering seeking full legal custody of a grandchild or grandchildren, speak with an attorney who will be able to explain the process that takes place and the larger circumstances. Make sure that you have an estate plan, including a will that names a legal guardian for your grandchildren, so a person you know, and trust will be able to take over as their guardian. You may also need to set up a trust or make them your heirs, so there will be money for their support and education.

Reference: Record Herald (Feb. 26, 2019) “Grandparents Raising Grandchildren”


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