Maine Custody vs Guardianship vs Power of Attorney: Which One Do You Need?
Three different people have told you three different things: get custody, get guardianship, get a power of attorney. In Maine these are distinct legal instruments with different requirements, different costs, and different authority. The right choice depends on whether the parent cooperates, how long you need the arrangement, and what institutions are asking of you.
Power of Attorney (18-C M.R.S. § 5-127)
What it is: A parent or guardian delegates care, custody, and medical consent authority to you by signing a power of attorney acknowledged before a notary or another official authorized to take acknowledgments. A court-appointed guardian's delegation becomes effective only when filed with the court.
Who signs: A parent or guardian. You cannot create one without the appointing person's voluntary participation.
What it covers: It can delegate day-to-day care, school activities, medical and dental consent, childcare, and travel-related authority. It cannot authorize consent to marriage, adoption, or termination of parental rights.
How long it lasts: 12 months maximum (extended for active-duty military).
What it costs: Notarization fee only — typically under $25.
Impact on parental rights: The appointing parent or guardian keeps their legal authority and can revoke or amend the delegation in writing by delivering it to the delegate and other interested persons.
Best for: Cooperative parents or guardians dealing with treatment, a temporary crisis, or deployment for a defined period. You need the appointing person's signature and may need a new POA after 12 months.
Minor Guardianship (18-C M.R.S. § 5-204)
What it is: A District Court or Probate Court order appointing you as the child's legal guardian; which court should hear the case depends on the child's case history.
Who decides: A judge, after a petition and hearing. Parents must receive notice and can contest it.
What it covers: Except as limited by the order, a guardian has a parent's powers and duties regarding the child's support, care, education, health, and welfare. A guardian may apply for and receive money for the child's support under statutory benefit programs, insurance, or private arrangements, and may commence proceedings to compel support for the child (18-C M.R.S. § 5-208(2)(C)). A guardian may also apply for a passport if the Department of State's parental-consent and proof-of-guardianship requirements are met.
How long it lasts: The order may be temporary or permanent, generally until the child turns 18, unless the court modifies or terminates it earlier.
What it costs: Court filing fees (waivable with CV-067/CV-191 forms for low-income petitioners) plus optional attorney fees, typically $250–$750.
Impact on parental rights: The court order sets the guardian's authority and any limits. A parent can petition to have the guardianship terminated if circumstances change.
Best for: Long-term care where the parent is unable or unwilling to participate, institutions refuse informal instruments, or you need authority that lasts beyond 12 months without re-signing.
Custody (19-A M.R.S. Parental Rights and Responsibilities)
What it is: A court order in a parental rights and responsibilities case. When parents live apart, that case may be filed in District Court or Probate Court.
Who has standing: Generally parents. A de facto parent can seek parentage under 19-A M.R.S. § 1891; the court can also award parental rights and responsibilities to a third person if awarding them to either parent would place the child in statutory jeopardy under 19-A M.R.S. § 1653(2)(C). De facto parentage requires clear and convincing evidence of a permanent, committed parental role, including significant residence, consistent caretaking, a bonded and dependent relationship fostered or supported by another parent who understood or accepted the person as a parent, acceptance of full and permanent parental responsibility without compensation, and the child's best interest.
What it covers: An adjudication establishes parentage; the court then determines parental rights and responsibilities under 19-A M.R.S. § 1653.
Best for: Relatives who have lived with and consistently cared for the child, have an established parent-like relationship supported by a parent, and can meet the statutory de facto-parent criteria.
Most grandparents and relatives raising a child won't pursue a custody case under Title 19-A. Minor guardianship through District Court or Probate Court is another path when you need court authority.
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Kinship Care vs Foster Care
Kinship care and foster care are sometimes confused, but they're structurally different:
- Informal kinship care is when you take in a child on your own, without DHHS involvement. You use the tools above (POA, guardianship) to establish authority. The state doesn't place the child with you and doesn't provide a foster care stipend.
- Foster care involves a DHHS child-protection case and a court order placing the child in state custody. The child may be placed with an approved relative or in a foster home. DHHS supervises the placement, and resource parents receive a daily stipend to help cover the child's care.
A DHHS safety plan is used only when the child can remain in the parents' care and custody; an out-of-home placement follows a court process. A safety plan does not appoint a relative guardian. School enrollment and medical consent still follow separate rules.
How to Choose
Start with the simplest tool that covers your situation:
- Parent cooperating, short-term need: Power of attorney
- Parent cooperating, school enrollment in your district needed: POA plus a nonparent residency application under 20-A M.R.S. § 5205(2), if the child is not a state ward, state agency client, or homeless student
- Parent unavailable or won't sign, healthcare needed now: Statutory surrogate consent under 22 M.R.S. § 1503-A for medical care, plus McKinney-Vento or § 5205(2) for school
- Long-term, parent unable or unwilling: Minor guardianship through District Court or Probate Court
The School and Medical Consent for Grandparents and Relatives in Maine guide walks through each instrument with decision trees, so you can match your situation to the right legal tool without guessing.
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