22-May-17
Minor Children – News that you can use
If you are a parent with minor children, you need to be aware of a subtle change in Michigan’s law that became effective on March 29th of this year.
Many of you know that you can execute a Power of Attorney to delegate parental authority over a minor child. My wife and I used these documents, admitted decades ago, when we traveled and entrusted our minor children to their grandparents for a week or so primarily to deal with medical emergencies that arose in our absence.
Michigan’s statute provided that parents could delegate their parental authority over their minor children for a period not to exceed six months. The Michigan statute [MCL 700.5103] was amended to read not to exceed 180 days. This subtle change makes it easier to identify the exact period during which the agent possesses the authority to make decisions with regard to a minor child’s health or financial affairs.
In addition a new section was added to the statute that provides: A parent shall not knowingly and intentionally delegate his or her powers under this section regarding care and custody of the child for longer than 180 days for the purpose of permanently transferring custody of the child in violation MCL 750.136c.
This new section apparently stems from a perceived abuse of the parental delegation of authority statute, where custody of a minor child was delegated for financial purposes.
Example: Father goes to prison. Mother is awarded physical and legal custody of their children. Father’s parents[ Grandparents] offer money to Mother to have the children placed with them, using the delegation of parental authority statute . Mother delegates her parental authority to Grandparents for up to 180 days in exchange for money; this delegation is renewed every 6 months, essentially permitting Grandparents to raise their grandchildren. [Yes, this kind of behavior actually takes place in our society today!]
MCL 750.136c provides:
- a person shall not transfer or attempt to transfer the legal or physical custody of an individual to another person for money or other valuable consideration, except as otherwise permitted by law. [Wife in the example]
- A person shall not acquire or attempt to acquire the legal or physical custody of an individual for payment of money or other valuable consideration to another person, except as otherwise permitted by law. [Grandparents in the example]
- A person who violates this section [could be both Wife and Grandparents in the example] is guilty of a felony punishable by imprisonment for not more than 20 years and a fine of not more than $100,000 or both.
- So that someone, or more accurately their agent, does not get trapped with a third-party who claims that the parental delegation of authority is invalid because it reads ‘six months’ and not ‘one-hundred and eighty days,’ it would be wise to update any outstanding parental delegation instruments to reflect the new language required by the statute. Unclear is if the statute requires that the delegation of parental authority power of attorney instrument must include the ‘A parent shall not knowingly and intentionally delegate his or her powers….’ prohibition language. I do not think so, but that is only a guess.