NEW! There are now legal resources for making these caregiving arrangements, when a Parent with Primary Custody Becomes Incarcerated
Using Power of Attorney for Parental Caregiving
A Guide to Making Care Arrangements for Minor Children-docx
Power of Attorney (POA) for Parents (Northwest Justice Project link)
Minor Guardianship Law Information
Non-Parental Custody is Changing to Minor Guardianship (external link)
If You are a Parent in Minor Guardianship, You can Ask for a Lawyer (external link)
Minor Guardianship Law Court Process Resources
New Minor Guardianship Law effective January 1, 2021 Frequently Asked Questions (Administrative Office of the Courts) (external link)
File a Minor Guardianship (external link)
Responding to Minor Guardianship (external link)
Minor Guardianship of Native American children (external link)
The Challenge:
In 2018, IPP identified through requests for legal information and referral from incarcerated parents and their loved ones that incarcerated parents needed the option of making responsible and appropriate caregiving arrangements for the care of their own minor child(ren) when they are not available. At that time, there was no state law authorizing parents to designate another person with the care of one’s own minor children due to a parent’s need to be temporarily absent. These arrangements when made are mostly emergent, voluntary, flexible, and temporary situations.
Updated Policy Outcome:
In 2019, the Washington State Legislature endorsed two laws to address the prior inflexibility. There is now a power of attorney instrument that allows a parent or parents to make these voluntary, temporary caregiving arrangements. See RCW 11.130.145. This law became effective June 11, 2020. Additionally, some incarcerated parents had also tried to access the formal arrangements offered by the nonparental custody statute, but they found this method was too cumbersome to navigate form jail or prison; too lengthy a process to complete on an emergent basis; and too difficult to amend or undo once the need for these caregiving arrangements passed. The old method was less helpful at meeting their family’s needs on an emergent and temporary basis. There are new minor guardianship provisions effective January 1, 2021.
For a practice advisory on this topic, click here; for forms and FAQs, click here; or please contact WDA’s IPP Resource Attorney at dadre@defensenet.org. Each county has implemented the new minor guardianship law differently, but the forms and instructions are available here.
Below are two 2018 publications that describe IPP’s policy challenge and a recommended legislative solution:
National Survey of Power of Attorney Statutes – Cunningham (2018)- Policy Report
This report reviews statutes authorizing the use of a power of attorney instrument to confer rights and obligations of caring for minor children to another whenever the parent chooses due to the parent’s need to be absent.
Arranging for Temporary Care of Minor Children during Parental Incarceration – Cunningham (2018)- Policy Report
This policy report proposes amendments to state law allowing parents to use power of attorney instruments to effectuate temporary child custody, care, and child-rearing arrangements for minor children with incarcerated parents (and other parents who are temporarily absent from their children).
Below is the description of IPP’s state legislative efforts in 2019-2020 have created more diverse options for parents needing temporary caregiving arrangements for their minor children.
HB 1259 and SB 5604 are the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA). Senator Jamie Pedersen and Rep. Laurie Jinkins filed companion bills in both houses to replace the old patchwork of laws that cover what happens when people pass away or become incapacitated as adults as well as, among other things, what happens to the care of their minor children in circumstances when they not willing or able to care for them. The Washington State Legislature passed this law on April 26, 2019. Governor Jay Inslee signed it on May 21, 2019. The so-called trailer bill to this comprehensive legislation was passed by the The Washington State Legislature on March 11, 2020. Governor Jay Inslee signed it on April 2, 2020. The effective date of the minor guardianship provisions remains effective January 1, 2021. The effective date of the power of attorney law allowing parents to delegate their caregiving duties of their minor children to another, found at RCW 11.130.145, becomes effective June 11, 2020.
The UGCOPAA creates at least four (4) types of caregiving arrangements for minor children whose parents are either unwilling or unable to care for them on a temporary or permanent basis: (1) Section 129 provides that a power of attorney instrument can delegate parental caregiving and decision-making over minor children, except for the power to consent to marriage or adoption, for up to twenty-four (24) months; (2) Section 209 provides for appointment of a guardian on an emergency basis for 60 to 120 days; Section 208 provides for appointment of a standby guardian of a minor; and Section 207 provides for appointment of a full or limited guardian of a minor. Under this new law, parents have a right to attend the hearings (Section 203) and to be appointed counsel at public expense if they are indigent and object (or who do not consent) to guardianship being entered (Section 204).
WDA’s Incarcerated Parents Project supported this comprehensive piece of legislation this legislative session to change and create state laws so that parents can execute power of attorney documents to make temporary caregiving arrangements for their minor children when they are unavailable for up to 24 months. The new law also repeals the non-parental custody statute in its entirety. In an effort to clarify the differences between the old non-parental custody law, the new guardianship of minors law, and the use of durable power of attorney to designate another person to provide caregiving of a minor child, WDA-IPP has created this comparison chart.