Don’t Tell Mom the Babysitter’s Dead: Maximizing the Massachusetts Temporary Agent Statute

Issue January/February 2021 February 2021 By Amanda Mulhall
Probate Law Section Review
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Amanda Mulhall

Abstract: When planning for families with minor children, it’s critical to utilize G.L. c. 190B § 5-103, permitting parents and guardians to appoint “temporary guardians.” This statute allows temporary guardians to act with full authority on behalf of a minor for up to 60 days without requiring a trip to the probate court. Appointing these “emergency responders” could prevent children from entering the Department of Children and Families (DCF) if their parents die or become incapacitated, mitigating the impact on children during a family crisis.

Estate planning for clients with minor children presents unique challenges for the attorney. These clients often arrive in the lawyer’s office with different priorities than those who have adult children, no descendants, or charitable inclinations. They regularly view themselves as parents first, their role as protectors paramount to the myriad tax minimization, probate avoidance, or gifting considerations when crafting an estate plan.

G.L. c. 190B § 5-103 is an underutilized provision of the Massachusetts Uniform Probate Code (MUPC) that addresses these fears. Formally named “Delegation of powers by parent or guardian” (colloquially known as the “temporary agent statute”), this section permits parents or guardians of minors or incapacitated persons to appoint a temporary agent who may act with full legal authority on behalf of a minor or incapacitated person for up to 60 days from the death, incapacity or consent of both principals. The nomination requires only a signature by each client in front of two witnesses and an acceptance by the agent; no trip to the probate court is required by the agent to invoke the powers. Although it goes without saying that the appointment of a permanent guardian is required in the event of the clients’ deaths or incapacity, the nomination of a temporary agent adds a layer of security for the clients in an emergency.

To illustrate this point, imagine that your clients are out to dinner together, leaving their young children at home with a teenage babysitter. Now imagine that your clients are involved in a car accident. When the police officer who is dispatched to the couple’s home arrives there to find a high schooler in charge, what is the officer to do? Certainly not leave the children with the babysitter or with a neighbor — who knows who is living next door? In fact, in the absence of instructions to the contrary, the officer should call DCF, as there is no legal guardian capable of caring for the children and no clear path forward with respect to custody.

Planners should be aware of this scenario and how it speaks directly to the fears of the client. Even if the planner thoughtfully guides the client through the exercise of nominating guardians in a will in the event of death and a nomination of guardian in the event of incapacity, these documents do not address the immediacy of the need as outlined above. In fact, they are terribly inefficient. The appointment of a guardian requires filing a petition for guardianship with the probate court that must wind its way through the court’s docket until it can be heard by a judge. Who is making decisions for the children in the meantime? Who can pick them up from school or bring them to the doctor?

By utilizing the temporary agent statute to nominate an agent, the planner can assuage the clients’ fears about their children in an emergency scenario. Temporary agents may exercise “any power that the parent or guardian has regarding the care, custody or property of the minor child” (with the somewhat obvious exceptions of marriage or adoption of the minor). Once invoked, the power lasts for up to 60 days, allowing time for a petition for guardianship to be filed and considered by the court, if necessary, without leaving the children’s care in a state of limbo. Because the powers may be invoked without court involvement, the planner is able to nimbly prepare for inefficiencies inherent in the system and alleviate chaos in the lives of the children. The clients may also opt to appoint a temporary guardian based on proximity to the family itself; this is critical for clients who have nominated a permanent guardian who lives in a faraway state or country, making it impracticable for them to reach the children at the drop of a hat.

Furthermore, nominating a temporary agent is likely to prevent an officer from contacting DCF to take custody of the minors, so long as the planner considers practicality. The planner should include the contact information of the agent so that the caregiver or police officer may call them promptly. Clients should name alternative temporary agents in the event that the first agent listed fails to answer the phone. (While the statute clearly states that powers may be given to “a temporary agent,” it does not limit the client from nominating alternative agents so long as only one agent invokes the power.) Once executed as part of the clients’ estate plan, the planner should make such document available to the clients and their caregivers by issuing a physical “Guardianship Folder” that includes a copy of the temporary agent nomination and other helpful resources, such as “Important Health Care Information” relevant to each child. This ensures that the document can be quickly located by a caregiver, easily relied and acted upon by an officer, and immediately invoked by the agent.

The temporary agent statute is a critical planning tool for practitioners who regularly engage clients with minor children. As outlined in the statute, these powers extend to parents and/or guardians of incapacitated persons as well; attorneys working with families with special needs and disabilities should also take note of the solutions available to clients with legal authority over others. Though the exercise of designing an estate plan can seem hypothetical to many young clients who consider themselves far from death, it is the duty of the planner to identify and address the areas of difficulty for the clients and their children if the inevitable occurs sooner than expected. The temporary agent statute is but one important tool that all practitioners should consider for clients with minor children. 

Amanda Mulhall is a solo practitioner in Natick whose practice is centered around estate planning for young families with minor children, as well as estate and trust administration. Mulhall has observed that many traditional estate plans are not properly tailored to reach the goals of families with minor children, so she has created a practice with these families in mind. She also recognizes that the estate planning process can be intimidating for clients and strives to create a supportive environment that fosters empowered decision-making. In addition to planning, Mulhall helps guide her clients through the probate and estate administration processes, including estate and fiduciary income taxation.