Legal Corner: Can custody of children be included in a will?

Published: Jun. 22, 2016 at 12:00 PM CDT|Updated: Aug. 7, 2017 at 3:58 PM CDT
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Question: "If someone who has power of attorney isn't making the best choices for someone they're responsible for, can those decisions be overturned or revoked?"

Current or past transactions that have been relied upon by a third party in good faith cannot be overturned. For example, assume the person with power of attorney (the "agent') makes a large cash withdrawal from the principal's bank and then goes and blows it at the casino. The bank nor the casino are liable to refund the money. However, the power of attorney could be legally challenged in order to stop future transactions. In a power of attorney situation, the person who grants the authority is called the "principal." The person who receives the authority form the principal and is empowered to sign documents for the principal is called the "agent." The agent owes the principal a fiduciary duty to act in the interest of the agent and in accordance with the agent's wishes. In Louisiana, we call this process of representation "mandate." LA Civ. Code Art 3001 says that the mandatary (i.e. the agent) is bound to fulfill with "prudence" and "diligence" the mandate he/she has accepted. Civ. Code Art. 3003 requires the mandatary to provide information and to render an accounting of his/her actions. Civ. Code Art 3008 says that if the mandatary exceeds his/her authority, then he/she is liable to the principal for losses or damages that his/her actions may have caused. So, to answer the viewer's question, if the principal is competent, then the principal can cancel the mandate by filing an act of revocation in the courthouse. If the principal is NOT competent, then an interested party may attempt to have the mandatary removed by suing the mandatary and proving that the mandatary has exceeded his or her authority. "Questionable choices," in and of itself, may not be enough to remove the mandatary.

Question: "If you are legally divorced and have custody of minor children, do you have to leave custody of said children to the divorced parent in a will? This parent only pays child support when the state catches him, and he never calls or sees the children."

Children are not things. They are not "left" to people in a will like a house or a car or piece of antique furniture. Generally, Louisiana Law prefers children live with their parents. The normal inquiry that a court makes when it has to decide custody of children between parents is what is in the "best interest of the child." However, in order for a non-parent to be awarded custody of a minor child over a parent, the non-parent would have to prove "substantial harm" would result to the child if custody were awarded to a parent (instead of a non-parent). See Civ. Code Art 133. This is a much higher burden of proof than mere best interest of a child. So, for example, if the parents are divorced, and Mom dies, and Dad and X-in-laws (non-parents) cannot agree on how to raise the child, then the non-parents would have to show, not only that it would serve the best interest of the child to live with the non-parents, but also that the child would likely suffer substantial harm if the child were placed in the custody of Dad. In those situations where the father is truly an absentee dad and not a part of the child's life, then it is likely the court would award custody to the grandparents or other family members who have a strong relationship with the child. However, Dad's mere non-payment of child support does not necessarily, in of itself, mean that the dad is a bad dad. If the dad wishes to establish a relationship with his children, then the court will likely orchestrate a "break-in-plan" or "get-to-know-you-plan" where the dad's access to the kids starts out small and then gradually increases over time as the children and the dad become more familiar with each other. One suggestion that may help our viewer is for the mother in this question to have a will and declare in in that she desires the "tutorship" (i.e. guardianship) of her children to be placed with her parents, or whomever, and spell out reasons why she thinks it's a bad idea for the kids to go to Dad upon her death (e.g. the kids have no relationship with him, he has never expressed an interest in parenting the children, the children have a close relationship with grandparents, etc. Again, a mere pronouncement in a will not necessarily determine the outcome of a contested custody trial, but it will be influential evidence to a judge.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney client relationship is created between the SWLA Law Center and the viewers of KPLC TV.

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