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An Act To Ensure Children in the Care of Caretaker Relatives Can Access Fundamental Services
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  19-A MRSA c. 60  is enacted to read:
CHAPTER 60
CAREGIVER RELATIVE AUTHORIZATION FOR MEDICAL CARE
§ 1821. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
 
1.  Caretaker relative.     "Caretaker relative" or "relative" means a person related by blood, marriage or adoption to the minor whose care is undertaken by the relative. "Caretaker relative" or "relative" includes a grandparent, aunt, uncle, brother, sister and cousin of the minor. "Caretaker relative" or "relative" does not include a parent, foster parent, stepparent or legal guardian of the minor.
 
2.  Caretaker relative medical authorization affidavit.     "Caretaker relative medical authorization affidavit" or "affidavit" means an affidavit completed in compliance with section 1822.
 
3.  Health care provider.     "Health care provider" means a person who provides medical care.
 
4.  Medical care.     "Medical care" means care by a health care provider, for which parental consent is normally required, for the prevention, diagnosis or treatment of a mental, physical or dental injury or disease.
 
5.  Parent.     "Parent" means a biological parent, adoptive parent or other legal guardian of a minor whose parental rights have not been terminated.
§ 1822. Caretaker relative medical authorization affidavit
 
1.  Caretaker relative medical authorization affidavit.     A caretaker relative of a minor who has voluntarily been given custody of the minor by a parent of the minor has the same authority as a parent of the minor to consent to medical care for the minor if:
 
A.  In leaving the minor with the caretaker relative, the parent expressed no definite time period in which the parent would return for the minor;
 
B.  The minor is residing with the caretaker relative on a full-time basis;
 
C.  The caretaker relative is unable to contact the parent after the parent voluntarily leaves the minor with the caretaker relative or the parent whom the caretaker relative is able to contact is unable or unwilling to regain custody of the minor after a written request by the relative to do so;
 
D.  Adequate provision, such as the appointment of a guardian ad litem or execution of a power of attorney, has not otherwise been made for the medical care of the minor; and
 
E.  A caretaker relative medical authorization affidavit is completed in compliance with this section.
 
2.  Affidavit must be notarized.     An affidavit is effective only if it is signed by the caretaker relative, under oath, before a notary public. A clear photocopy of an affidavit completed in compliance with this section is sufficient in any instance in which an original is required by a health care provider.
 
3.  Conflicting decisions.     Unless the rights of a parent have been judicially terminated, a decision by a parent of the minor communicated to the health care provider regarding the health care of the minor supersedes a conflicting decision by a caretaker relative made pursuant to an affidavit completed in compliance with this section. However, a decision by a parent does not supersede a decision by a caretaker relative made pursuant to an affidavit completed in compliance with this section if the decision by the parent endangers the life of the minor. A health care provider may require reasonable proof of authenticity of a decision by a parent intended to supersede a decision by a caretaker relative.
 
4.  No civil or criminal liability.     A health care provider who acts in good faith reliance on a caretaker relative medical authorization affidavit completed in compliance with this section and who has no actual knowledge of facts contrary to those indicated in the affidavit is not subject to civil liability or criminal prosecution or to a professional disciplinary procedure for an action that would have been proper if the facts had been as the health care provider believed them to be.
 
This subsection applies even if medical care is provided to a minor against the wishes of a parent of that minor if the health care provider rendering the service does not have actual knowledge of the parent's wishes.
 
5.  No obligation to make further inquiry or investigation.     A health care provider who relies on an affidavit completed in compliance with this section has no obligation to make further inquiry or investigation.
 
6.  Duration of affidavit.     An affidavit completed in compliance with this section is effective until the earlier of:
 
A.  One year from completion of the affidavit;
 
B.  The date the affidavit is revoked by the caretaker relative; and
 
C.  The date upon which the minor no longer resides with the caretaker relative.
 
7.  Residence changed.     If the minor ceases to live with the caretaker relative or the caretaker relative revokes the affidavit, the caretaker relative shall provide written notice of that fact to all health care providers to whom the caretaker relative has given the affidavit or to whom the caretaker relative has caused the affidavit to be given.
 
8.  Limitations.     This section does not relieve a person from a violation of other law and does not affect the rights of a minor's parent except as provided in this section.
 
9.  Form.     A caretaker relative medical authorization affidavit is invalid unless it is written in substantially the following form and contains the warning described:
 
CARETAKER RELATIVE MEDICAL AUTHORIZATION AFFIDAVIT
 
1. INSTRUCTIONS: The completion and signing of the affidavit before a notary public are sufficient to authorize medical care for the named minor. Please print clearly.
 
The minor named below lives in my home, and I am 18 years of age or older.
 
A. Name of minor:......................................................
 
B. Minor's date of birth:..............................
 
C. My name (caretaker relative):.................................................
 
D. My home address:...................................................................
 
E. My relationship to the minor (the caretaker relative must be an individual related by blood, marriage or adoption by another individual to the minor whose care is undertaken by the caretaker relative, but who is not a parent, foster parent, stepparent or legal guardian of the minor):...............................................................
 
2. I hereby certify that this affidavit is not being used for an unlawful purpose.
 
3. My date of birth:....................................
 
4. Check the following if true (all must be checked for this affidavit to apply):
 
[ ] A parent of the minor identified in this affidavit has left the minor with me and has expressed no definite time period when the parent will return for the minor.
 
[ ] The minor is now residing with me on a full-time basis.
 
[ ] I am unable to locate or contact the parent of the minor at this time to notify that parent of my intended authorization or the parent refuses to regain custody of the minor even though I have asked in writing that the parent do so.
 
[ ] Adequate provision, such as appointment of a legal custodian or guardian or execution of a notarized power of attorney, has not been made for medical care for the minor.
 
5. WARNING: DO NOT SIGN THIS FORM IF ANY OF THE STATEMENTS ABOVE ARE INCORRECT OR YOU WILL BE COMMITTING A CRIME PUNISHABLE BY A FINE OR IMPRISONMENT OR BOTH.
 
6. I declare under penalty of perjury that the statements in this affidavit are true and correct.
 
Signed this ............... day of ........, 20.........
 
..........................................................................
 
(Signature of caretaker relative)
 
..........................................................................
 
(Signature, county, state and seal of notary public)
 
7. NOTICES:
 
A. Completion of this affidavit does not affect the rights of the minor's parent or legal guardian regarding the care, custody and control of the minor and does not mean that the caretaker relative has legal custody of the minor;
 
B. A health care provider who relies on this affidavit has no obligation to make any further inquiry or investigation;
 
C. This affidavit is effective until the earlier of:
 
(1) One year from completion of the affidavit;
 
(2) The date the affidavit is revoked by the caretaker relative; and
 
(3) The date upon which the minor no longer resides with the caretaker relative;
 
D. If the minor stops living with you, you shall notify anyone to whom you have given this affidavit and to whom you have caused the affidavit to be given; and
 
E. A health care provider who acts in good faith reliance upon a caretaker relative medical authorization affidavit to provide medical care, without actual knowledge of facts contrary to those indicated in the affidavit, is not subject to criminal prosecution or civil liability or subject to any professional disciplinary action for reliance on the affidavit if the form is completed in compliance with the Maine Revised Statutes, Title 19-A, section 1822.
Sec. 2.  20-A MRSA c. 211, sub-c. 6  is enacted to read:
SUBCHAPTER 6
CARETAKER RELATIVE EDUCATION AUTHORIZATION
§ 5171. Definitions
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
 
1.  Caretaker relative.     "Caretaker relative" or "relative" means a person related by blood, marriage or adoption to the minor whose care is undertaken by the relative. "Caretaker relative" or "relative" includes a grandparent, aunt, uncle, brother, sister and cousin of the minor. "Caretaker relative" or "relative" does not include a parent, foster parent, stepparent or legal guardian of the minor.
 
2.  Caretaker relative education authorization affidavit.     "Caretaker relative education authorization affidavit" or "affidavit" means an affidavit completed in compliance with section 5172.
 
3.  Health care provider.     "Health care provider" means a person who provides medical care.
 
4.  Medical care.     "Medical care" means care by a health care provider, for which parental consent is normally required, for the prevention, diagnosis or treatment of a mental, physical or dental injury or disease.
 
5.  Parent.     "Parent" means a biological parent, adoptive parent or other legal guardian of the minor whose parental rights have not been terminated.
§ 5172. Caretaker relative education authorization affidavit
 
1.  Caretaker relative education authorization affidavit.     A caretaker relative of a minor who has voluntarily been given custody of the minor by a parent of the minor has the same authority as a parent of the minor to enroll the minor in school, discuss with an educator the educational progress of the minor, consent to an educational service and consent to medical care related to an educational service for the minor if:
 
A.  In leaving the minor with the caretaker relative, the parent expressed no definite time period in which the parent would return for the minor;
 
B.  The minor is residing with the caretaker relative on a full-time basis;
 
C.  The caretaker relative is unable to contact the parent after the parent voluntarily leaves the minor with the caretaker relative or a parent whom the caretaker relative is able to contact is unable or unwilling to regain custody of the minor after a written request by the relative to do so;
 
D.  Adequate provision, such as the appointment of a guardian ad litem or execution of a power of attorney, has not otherwise been made for the educational needs of the minor; and
 
E.  A caretaker relative education authorization affidavit is completed in compliance with this section.
 
A caretaker relative of a minor who has voluntarily been given custody of the minor by a parent of the minor may enroll the minor in school unless the minor's residency with the caretaker relative is primarily for the purpose of attending a particular school or participating in athletics at a particular school. The school may require additional reasonable evidence that the caretaker relative lives at the address provided in the affidavit.
 
2.  Affidavit must be notarized.     An affidavit is effective only if it is signed by the caretaker relative, under oath, before a notary public. A clear photocopy of an affidavit completed in compliance with this section is sufficient in any instance in which an original is required by a school official or health care provider.
 
3.  Conflicting decisions.     Unless the rights of a parent have been judicially terminated, a decision by a parent of the minor communicated to a school official or health care provider or both regarding the minor supersedes a conflicting decision by a caretaker relative made pursuant to an affidavit completed in compliance with this section. However, a decision by a parent does not supersede a decision by a caretaker relative made pursuant to an affidavit completed in compliance with this section if the decision by the parent endangers the life of the minor. A school official or health care provider may require reasonable proof of authenticity of a decision by a parent intended to supersede a decision by a caretaker relative.
 
4.  No criminal or civil liability.     A person who acts in good faith reliance on a caretaker relative education authorization affidavit completed in compliance with this section and who has no actual knowledge of facts contrary to those indicated in the affidavit is not subject to civil liability or criminal prosecution or to a professional disciplinary procedure for an action that would have been proper if the facts had been as the person believed them to be.
 
This subsection applies even if an educational service or medical care related to an educational service or both are provided to a minor against the wishes of a parent of that minor if the person rendering the service does not have actual knowledge of the parent's wishes.
 
5.  No obligation to make further inquiry or investigation.     A person who relies on an affidavit completed in compliance with this section has no obligation to make further inquiry or investigation.
 
6.  Duration of affidavit.     An affidavit completed in compliance with this section is effective until the earlier of:
 
A.  The end of the first school year after delivery of the affidavit to a school;
 
B.  The date the affidavit is revoked by the caretaker relative; and
 
C.  The date upon which the minor no longer resides with the caretaker relative.
 
7.  Residence changed.     If the minor ceases to live with the caretaker relative or the caretaker relative revokes the affidavit, the caretaker relative shall provide written notice of that fact to all persons to whom the caretaker relative has given the affidavit or to whom the caretaker relative has caused the affidavit to be given.
 
8.  Limitations.     This section does not relieve a person from a violation of other law and does not affect the rights of a minor's parent except as provided in this section.
 
9.  Form.     A caretaker relative education authorization affidavit is invalid unless it is written in substantially the following form and contains the warning described:
 
CARETAKER RELATIVE EDUCATION AUTHORIZATION AFFIDAVIT
 
1. INSTRUCTIONS: The completion and signing of the affidavit before a notary public are sufficient to authorize educational enrollment and services and school-related medical care for the named minor. Please print clearly.
 
The minor named below lives in my home, and I am 18 years of age or older.
 
A. Name of minor:...............................................................
 
B. Minor's date of birth:...................................
 
C. My name (caretaker relative):...................................................
 
D. My home address:.....................................................................
 
E. My relationship to the minor (the caretaker relative must be an individual related by blood, marriage or adoption by another individual to the minor whose care is undertaken by the caretaker relative, but who is not a parent, foster parent, stepparent or legal guardian of the minor):........................................................................
 
2. I hereby certify that this affidavit is not being used for the purpose of circumventing school residency laws, to take advantage of a particular academic program or athletic activity or for an otherwise unlawful purpose.
 
3. My date of birth:..........................................
 
4. Check the following if true (all must be checked for this affidavit to apply):
 
[ ] A parent of the minor identified in this affidavit has left the minor with me and has expressed no definite time period when the parent will return for the minor.
 
[ ] The minor is now residing with me on a full-time basis.
 
[ ] I am unable to locate or contact the parent of the minor at this time to notify that parent of my intended authorization or the parent refuses to regain custody of the minor even though I have asked in writing that the parent do so.
 
[ ] Adequate provision, such as appointment of a legal custodian or guardian or execution of a notarized power of attorney, has not been made for enrollment of the minor in school, other educational services or medical care related to an educational service.
 
5. WARNING: DO NOT SIGN THIS FORM IF ANY OF THE STATEMENTS ABOVE ARE INCORRECT OR YOU WILL BE COMMITTING A CRIME PUNISHABLE BY A FINE OR IMPRISONMENT OR BOTH.
 
6. I declare under penalty of perjury that the statements in this affidavit are true and correct.
 
Signed this ............... day of............., 20.......
 
......................................................................
 
(Signature of caretaker relative)
 
......................................................................
 
(Signature, county, state and seal of notary public)
 
7. NOTICES:
 
A. Completion of this affidavit does not affect the rights of the minor's parent or legal guardian regarding the care, custody and control of the minor and does not mean that the caretaker relative has legal custody of the minor;
 
B. A person who relies on this affidavit has no obligation to make any further inquiry or investigation;
 
C. This affidavit is effective until the earlier of:
 
(1) The end of the first school year after delivery of the affidavit to a school;
 
(2) The date the affidavit is revoked by the caretaker relative; or
 
(3) The date upon which the minor no longer resides with the caretaker relative;
 
D. If the minor stops living with you, you shall notify anyone to whom you have given this affidavit and to whom you have caused the affidavit to be given; and
 
E. A school official or health care provider who acts in good faith reliance upon a caretaker relative education authorization affidavit to provide educational services or medical care related to an educational service, without actual knowledge of facts contrary to those indicated in the affidavit, is not subject to criminal prosecution or civil liability or subject to any professional disciplinary action for reliance on the affidavit if the form is completed in compliance with the Maine Revised Statutes, Title 20-A, section 5172.
 
SUMMARY
This bill, which is based on Montana law, allows the caretaker relative, including a grandparent, aunt, uncle, brother, sister and cousin, of a minor voluntarily left by the minor's parent with the caretaker relative to exercise limited authority to make medical and educational decisions for the minor in place of the parent. It provides for authorization of the caretaker relative by a notarized affidavit and sets out the content and form of the affidavit. It provides immunity from criminal and civil liability and professional discipline for persons, including health care providers and school officials, relying on the affidavit in the absence of the person's knowing facts contrary to the affidavit or knowing that the parent has made a decision that supersedes the caretaker relative's decision.