Legal Advice for Boomers: Tips for raising grandchildren

I recently reviewed a book full of practical and legal advice for Baby Boomers and their loved ones called Alive and Kicking. I learned a lot from the book, and the authors were kind enough to send me some columns to use as guest posts. This one is about raising grandchildren.

Raising Grandchildren

After all the years, after all the alarm clocks, after all our work, it has become our time, our time to be that quiet person, sitting with our sleepy grandchildren, whispering "Hush."

Well, maybe not.

Many grandparents not only put their grandchildren to bed, they wake them in the morning, feed them, get them off to school, and, as the years go by, stay up late, fretting until they come home.

The US Census Bureau reports that more than six million children (that is, about one in 12 of all children) are being raised by relatives other than their parents. Of that number about 3/4 are being cared for by grandparents. If that's you, read on.

First, support groups. The AARP's "Grandparent Information Center" offers information on raising grandkids. Email: gic@aarp.org or phone 1-888-OUR-AARP. Another source of help: Generations United: www.gu.org.

Second, financial help. If you are retired and your grandchildren are under 18 (or older if disabled), they may be entitled to Social Security benefits, particularly if you have adopted them. If you are having difficultly making ends meet, contact your local welfare office or Area Agency on Aging. Don't overlook the possibility of claiming your grandchildren who are living with you as dependents on your income taxes.

What are the legal concerns?

Housing. Some "adult" communities prohibit kids. Best to try to work things out with whoever is in charge, hopefully not Darth Vader. If you are threatened with eviction or other legal action, a good lawyer may, by careful reading, find that the documents do not, after all, apply to your situation – these insights are known by your bitterly disappointed adversary as "loopholes." (Never do anything simply because an adversary tells you that the law requires it; always check with a lawyer: if there are no loopholes, there may be nitpicks or at least a good quibble.)

Custody. Physical custody does not equal legal custody. Not having legal custody can lead to problems — doctors may insist on a parent's consent to a medical treatment, and school and welfare officials might also require it. If the child's stay with you is to be temporary, say over the summer or until the parents can relocate, then a Parental Power of Attorney should suffice in most states. Signed by the parent (better yet, notarized - bells and whistles always help), it will give you power to act in the parent's stead in relation to medical and educational decisions. Even a letter, signed by one parent, is better than nothing.

Things become much more complicated if your grandchildren are living with you more or less permanently.

Sally, 22 and unwed, leaves her six-month-old baby with her parents "until she can work things out." She has an irregular work history, a minor drug problem, and a scuzzy boyfriend. Two weeks ago she went out for a pack of cigarettes; other than one collect phone call from Oklahoma, she hasn't been heard from since.

Our advice: adopt.

Unless you have legal custody, Sally can reappear, years later, and pick up the child, insisting "This time I will make a go of it." Children need love and permanence. A general Power of Attorney does not guarantee permanence. It can always be revoked by the parent – or even by the other parent. Without legal custody, both you and the children will be hostage to the whims of the parents.(If you adopt your grandchild, it need not be forever. If the parents gets their act together, you can return physical custody to them.)

You'll need legal help here. However, having seen the tremendous heartbreak that can flow from leaving things up in the air, we strongly advise that you get legal custody of the children: the cost will be well worth it, both for you and your grandchildren.

If you adopt, you have all the rights and obligations of a parent, including the legal duty to support the child. (But you are probably already supporting the child – it has been our experience that young, unwed moms, with drug problems and scuzzy boyfriends, living somewhere in Oklahoma, don't contribute much financial support anyhow.)

Inheritance. If you die without a will, your children, not your grandchildren, will get what you have. If you want to leave your grandchildren money, there are a host of problems (giving money to minors can create problems) and a host of alternatives such as trusts. Again a trip to your lawyer is advised.

Kenney Hegland is a Professor of Law at the University of Arizona and has taught at Harvard and UCLA. Robert Fleming in one of the nation's leading elder law lawyers. Visit their website at www.legaladviceforboomers.com.