On February 17, 2017, Karen Yau, Director of Outreach and Capacity Building with the New York Immigration Coalition, reached out and asked me about information and tools that may help immigrant parents and families who fear deportation plan for the care and financial support of their children, because of my work on Elder Law and Estate Planning. As this project took shape, I consulted with my CUNY School of Law colleague, Prof. Janet Calvo, who is an expert on immigration law.
As a result of our discussions, on March 9, 2017, Karen organized a webinar, which I gave, for non-lawyer advocates who had undergone basic training as Immigration Navigators, who are non-lawyers who help immigrants navigate through the immigration-related issues and gather documents that can help with their immigration cases.
The materials from that training are posted and available on this site: they explain fundamental advance planning tools, best practices for advocates, and include sample forms.
As this project develops, this site will serve as the platform to share materials and information: cuny.is/planningwithparents
The ultimate goal must be to reverse the shameful policies that have targeted immigrants and spread fear.
In the meantime, parents who fear deportation need help in learning about advance planning tools for their children.
Thanks to Lin-Manuel Miranda for capturing the emotional dimension of this work in his poignant song from Hamilton, “It’s Quiet Uptown”:
“There are moments that the words don’t reach,
Suffering too terrible to name,
You hold your child as tight as you can,
And push away the unimaginable.”
Here’s to working together,
On Saturday, April 29, we had our second walk in legal clinic for parents who want to plan for their children in case of deportation. Our teams of CUNY Law alums and students served 20 plus families and individuals, providing them with information about advance planning documents and tools, and helping them complete a variety of documents, including Designations of Person in Parental Relationship and Powers of Attorney.
Here is a snapshot of lessons (re)learned:
- Families have complex needs that need to be fully understood. Everybody’s family situation is complex, decisions about planning for children require clear information, discussion, and thought. Even if the outcome is a relatively simple form that gets completed and signed, the process that goes into completing the form is not simple.
- Parents may also need to plan for adult children with special needs, in addition to minor children. Adult children with special needs should be part of the information, advice, and representation we provide. When we consider planning for children, we need to include the possibility that parents need to plan for an adult child who has a disability and who may need a guardian. Taking care of an adult child with a disability involves different considerations than care of a minor and, if a guardianship is necessary, requires different court procedures than a guardianship of a minor.
- Parents are getting wrong advice. Immigrants are receiving incorrect advice about guardianship and planning documents: they are told you have to be a citizen to be a guardian and you should use a power of attorney to name a guardian. First, if a person is domiciled in New York (meaning New York is their fixed, primary, and permanent home, not a temporary residence) they can be a guardian for a child or adult, even if they are undocumented; there is no requirement that a person be a citizen or have a particular legal status to be a guardian (even a “nondomiciliary alien” can be a guardian if they have a co-guardian who is a resident of New York). Second, in New York, parents should not use a power of attorney to name a guardian for their children; the power of attorney is limited to property decisions and actions, and should not be used to name a guardian.
The Women’s Refugee Commission has excellent guides and reports to help parents who want to plan for the care of their children here.
The materials emphasize that the particular planning documents, tools, and court procedures described are not state specific, so it is important to get information and complete documents that are legally recognized in the parent’s home state.
April 1, 2017 – Family Advance Planning For Immigrants At Risk of Deportation: Training for CUNY School of Law Alums & Students at CUNY School of Law with presentations from Prof. Joe Rosenberg (’86), Sasha Herzig (’12), and Lisa Parisio (’15).
The January 25, 2017 executive orders on immigration enforcement effectively put over 11 million people living in the U.S. at risk of detention and deportation. As a result, parents, caregivers, and others are left exposed to catastrophic legal consequences if they are suddenly separated from their children or lose control of their assets.
CUNY School of Law is mobilizing to help immigrants at risk and their families in New York. On April 1, 2017 more than 50 alumni and students attended an interactive training at the law school on advance planning documents and tools for people who are undocumented, including the temporary care of children, designation of a guardian, New York power of attorney, and other legal forms. The training included cross-cultural lawyering awareness to help participants advise and counsel families and individuals forced to confront these difficult decisions.
Following the training, participants signed up to staff at least one walk-in community legal clinic we have organized, where alumni and law students will work together to assist parents.
For more information:
Click on the link below for a video of this important March 15, 2017 hearing of the NYC Council Immigration Committee:
April 1 Training for CUNY Law Alums & Students: Family Advance Planning for Immigrants at Risk of Deportation
This training on advance family planning will take place at the law school on Saturday morning, April 1, from 10 a.m.-12 noon.
It is limited to CUNY Law alumni or students.
This training will prepare participants to help staff a legal clinic on April 15 and/or April 29.
Please click here for more information and to RSVP.
A March 15, 2017 Voices of New York article by Zaira Cortes, “How Undocumented Parents Can Protect Children Born Here,” describes accurately and poignantly the plight of parents who fear for their children if they are deported. The article discusses how parents can use powers of attorney to manage their property and care for their children. Unfortunately, the article leaves the readers with the wrong impression that an agent under the power of attorney has authority to both make decisions about the parent’s property and the personal care of children in a guardianship role.
A Power Of Attorney Is Limited To Financial & Property Decisions For The Parent
An agent appointed under a N.Y. power of attorney only has powers related to finances and property for the parent who created the power of attorney.
An agent under a power of attorney does not have the power to deal with a child’s health care, education, travel, and does not have the authority to sign documents for children. A power of attorney should not be used to express a choice for a child’s guardian.
An agent can be granted the power to use the parent’s money to provide support to children, as the parent would have done.
An agent named in a power of attorney should be absolutely trustworthy and responsible, as a power of attorney can be used as a “license to steal.” In New York, a person must use the required “statutory” power of attorney, which is hard to complete and sign correctly. Parents should work with a knowledgeable lawyer to make sure the power of attorney is valid.
A Power Of Attorney Cannot Be Used For Decisions About Personal Needs Such As Health Care & Where to Live
In N.Y., unlike some other states, a power of attorney is limited to financial and property matters of the person who created the power of attorney (for example, banking, paying bills, signing a lease). A power of attorney does not grant the agent any other decision making powers for the parent who created it.
The agent does not have the authority to make personal needs decisions for the parent such as those related to health care, medical treatment, or living arrangements.
A Designation Of Person In Parental Relationship Can Be Used For The Temporary Personal Care Of Children
For temporary “parental authority” over the personal care of a child, a parent can complete a “Designation of Person in Parental Relationship.” This document only lasts for a maximum of 6 months, from a specific date or future event (such as deportation), and it can be renewed.
A parent designates a person who will have “parental authority” to deal with school, child care, health care providers, and routine medical procedures. The parent keeps all parental rights. Although it is usually better to work with a lawyer if possible, this documents is “user friendly” and, if necessary, can be completed without a lawyer.
Certain Documents Deal With Property Matters & Other Documents Deal With Personal Care
These two documents are examples of key advance planning tools parents should consider. A power of attorney can be used for decisions about a parent’s property, including providing support to children. A designation of person in parental relationship can be used to designate a person to care for children on a temporary basis. These documents may be used with other documents to create a solid advance plan for parents, which hopefully they never have to use.
For more information, including other advance planning documents, go to the left side of this page and click on the Training Materials from the 3.9.17 webinar for the NY Immigration Coalition.
These documents can help parents create an advance plan and are available on this site (see training materials from 3.9.17 training for NY Immigration Coalition):
Advance Planning Documents for A Child’s “Person”
- Designation of Person in Parental Relationship (English & Spanish)(annotated & blank form with instructions)
- Designation of Guardian of Minor Children
- Waiver of Process, Renunciation, or Consent to Guardianship
- Designation of Standby Guardian (only for parents who have a chronic or fatal medical condition)
Advance Planning Documents to Manage Property for a Child
- New York State Power of Attorney (Statutory Gifts Rider not included)
- Designation of Custodian under N.Y. Uniform Transfers to Minors Act
- Representative Payee for Social Security Benefits
Advance Planning For Parents: “Working Through the Unimaginable”
March 9, 2017 Audio Webinar Training for Non-Lawyer Advocates, New York Immigration Coalition
Prof. Joe Rosenberg, CUNY School of Law
Supervising Attorney, Main Street Legal Services, Inc.
How to Use This Audio Together with the Training Materials
An edited, 1 hour version of my March 9, 2017 audio webinar for the NY Immigration Coalition is in the Materials & Resources section on the right side of this page. Just click on the link to listen.
During the webinar, participants listened as they viewed my powerpoint and samples of documents included in the materials.
You can find these training materials in the Materials & Resources section on the right side of this page and review them as you listen (the powerpoint is a pdf).
Many immigrants who are undocumented and have minor children born in the U.S. are now worried about who will take care of their children if they are arrested, detained, or deported.
Planning for minor children while a parent is alive, but at risk of deportation, is both similar and different than planning for a child upon a parent’s death.
The goals and emotional challenges of planning are similar, but the documents and arrangements are somewhat different.
This material is for non-lawyer advocates who are working with immigrants who are undocumented and fear deportation.
If possible, I recommend that parents consult a lawyer before they sign any document or decide on a particular course of action.