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.
Incarcerated parents use of power of attorney instruments to confer to another person their parental caregiving rights and obligations for their minor children during their temporary absence should be protected by the UPAA. The Washington Defender Association’s Incarcerated Parents Project(WDA-IPP) proposes that Washington‘s Uniform Power of Attorney Act (“UPAA”) be amended to provide for the use of 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 are two publications that describe this 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 to provide more diverse options is underway.
HB 1259 and SB 5604 are the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act. Senator Jamie Pedersen and Rep. Laurie Jinkins have filed the UGCOPAA 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 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:
• 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 nine (9) months. We support lengthening this period to 18 (months). It will provide a longer period of stability and save resources.
• 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.
• Section 207 provides for appointment of a full or limited guardian of a minor.
Adopting the UGCOPAA may require amending or replacing Chapter RCW 26.10 to include the higher level of due process protections for parents as provided in the UGCOPAA. This proposed legislation has been amended in many respects including the removal of the mandatory appointment of counsel for parents who were not consenting to guardianship and for children aged 12 years and older, but still contains provisions allowing for courts at their discretion to appoint counsel under certain circumstances. This amendment was accompanied by a provision that “a petition for guardianship of a minor may not be granted if the parents are objecting or not consenting unless parental rights have been terminated.”
Substitute Senate Bill 5604 was voted out of the Senate Law & Justice Committee on February 7, 2019.