Options for Relative Caregivers

1. Adoption (in all states)
2. Guardianship (in all states)
3. Legal Custody (in all states)
4. Open Adoption with Agreements (in some states)
5. De Facto Custodian (in some states)
6. Permanent Guardianship (in some states)
7. Standby Guardianship (in some states)
8. Subsidized Guardianship (in some states)
9. Medical & Educational Consent (in some states)

Some states are working to improve the problems informal caregivers have accessing medical care for the children they are raising and enrolling the children in school by implementing medical and educational consent laws. These laws basically allow caregivers without legal custody or guardianship of a child to prepare and submit an affidavit to consent to a child's medical treatment and enroll them in school. Some states (California and Delaware) include an important feature in their laws that if reasonable efforts are made to locate the parents, the signatures of the parents are not required on the affidavits. Some of the laws do not have this feature, which is important in those situations where the parents cannot be found. The affidavits must include a signed statement by the caregiver that the minor resides with him or her.

California has had a medical and educational consent law since 1994. The law, which includes the form for the affidavit, can be found at California Family Code, sections 6550-6552. For a copy, click here.

Delaware has separate educational and medical consent laws. The educational consent law can be found in Title 14 of the Delaware Code at section 202. Delaware's medical consent law can be found in Title 13 of its Code at section 707.

Florida has a law, which can be found in the Florida Domestic Relations Code at section 743.0645, whereby a grandparent, adult aunt or uncle or person with power of attorney can consent to medical care or treatment of a minor after a treatment provider has failed in his or her reasonable attempt to contact a parent, legal custodian or legal guardian. Under this law, no writing is necessary to convey consent power. For a copy of this law, click here.

North Carolina has an educational consent law, which can be found in the North Carolina Code at section 115C-366, whereby an adult who is raising a child informally can enroll the child in a school district where the adult is a domiciliary provided certain conditions are met. Two affidavits are completed and submitted to the school district under this law: (1) The affidavit of the parent, legal guardian or legal custodian and (2) the affidavit of the adult with whom the child lives. If the parent is unable, refuses or is unavailable to submit the affidavit, the adult's affidavit should include a statement that the parent is unable, refuses or is unavailable. For a copy of this law, click here, then scroll down to section 115C-366.

Pennsylvania enacted a medical consent law in November 1999, which will be codified in the Pennsylvania Code at Title 11, sections 2511-2513. This law provides that a parent, legal guardian or custodian may give an adult, including a relative caregiver, authorization to consent to medical or mental health care for the child. The authorization can be in any written form and must be signed by the parent, legal guardian or custodian and witnessed by two adults, neither of whom is the person to whom authorization is being given. There is no time limit on this authorization, but can be revoked at will. Furthermore, the death of the parent, legal guardian or custodian who executed the authorization will automatically revoke the authorization.

Other states that have some form of medical consent law include Indiana (Indiana Code at section 16-36-1-5), Kansas (immunization authorization only at KS Code, Chapter 38, section 136), Mississippi (MS Code at section 41-41-3), Texas (TX Family Code at section 32.001 and 32.101), and Washington, D.C. (D.C. Code at section 16-4901).

Source: Generations United, one of the premier Web resources for grandparents and other relative caregivers. Copyright 2002, Generations United. Reprinted with permission of Generations United http://www.gu.org

© 2002 Generations United