Incarcerated parents need the option of making responsible and appropriate caregiving arrangements for the care of their own minor child(ren) when they are not available. There is currently 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. Those arrangements when made are mostly emergent, voluntary, flexible, and temporary situations. These caregiving arrangements once entered into should be respected as if the parent was caring for the child. To meet this need, incarcerated parents currently rely upon legal instruments that are not explicitly endorsed or protected by the law. Some incarcerated parents try to access the permanent legal arrangements offered by our legal framework, but they find these methods are costly or not effective at meeting their family’s needs on an emergent and temporary basis.
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).
2019-2020 Legislative efforts 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 effective date is January 1, 2021.
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/create state law 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. WDA-IPP has also produced legal resources for lawyers that can be found on our website under IPP Resources for Lawyers.