Dana A. Floyd Family Law Blog on Lawyers.com

Changes in our society have caused us to rethink our common definition of “family”.  The notion of the traditional family structure has expanded to include single parent households, same sex parented households and grandparents as primary caregivers.  Not surprisingly, when legal issues arise in these family situations, the law has often struggled to adequately address the needs of all the family members.  In particular, many feel that the law has historically failed to sufficiently deal with the rights and needs of grandparents in the position of caring for their grandchildren.

AARP estimates that 98,773 children in Georgia are living in households headed by grandparents or another relative without a parent present. [1]  As the economic times force more and more families to alter their living situations and challenge their ability to care for their children, we can certainly expect this number to continue to rise.  Inevitably, these transitions can increase the amount of stress on any family unit.  In situations where a grandparent cares for a grandchild without the presence of a parent, the situation can be complicated by a lack of legal rights to properly care for the child.  Often, grandparents face problems when trying to enroll a grandchild in a local school, seek medical attention for the child or add a grandchild to a grandparent’s insurance plan.  Previously, in order to have the proper legal authority to handle these issues, grandparents had to appeal to the court system to establish guardianship or custody of the minor child.  However, in an attempt to address the legal issues created by grandparents as caregivers, last year the Georgia legislature passed the “Power of Attorney for the Care of a Minor Child Act”[2].  The Power of Attorney for the Care of a Minor Child Act allows parents and grandparents to establish the legal authority to make decisions and provide for the minor child in situations in which a parent cannot to do so. The Act gives grandparents the legal authority to provide for minor children in their care without the expense of legal fees or court costs. 

Under O.C.G.A. §19-9-122, a parent may authorize any grandparent residing in Georgia care giving authority for a minor child when hardship prevents the parent from properly caring for the child.  This delegation of authority does not need the approval of the court if the parent executes a written power of attorney that conforms to the requirements of the Act.  “Hardship” is defined as including but not limited to the death of the other parent, serious or terminal illness, the physical or mental condition of the parent or the child such that proper care and supervision cannot be provided, incarceration of a parent, the loss of a home due to natural disaster or active military duty exceeding 24 months.[3]  The Act specifically states that hardship does not include an investigation by the Department of Human Resources and thus prohibits the use of a power of attorney to merely subvert an investigation by DFACS.[4]

The power of attorney provided for by the Act allows a parent to authorize a grandparent to enroll the child in school and provides access to school records in order to accomplish that goal.[5]  Additionally, the grandparent is authorized to arrange and consent to any medical, dental or mental health treatment and enroll the child in any health program offered to the grandparent.[6]  In a more general nature, the Act authorizes a grandparent to provide for the child’s food and housing along with any recreation or travel.[7]  Finally, the Act allows the parent to add any additional powers necessary for the care of the child.[8]

If a grandparent is assuming the authority the Act provides, it is understandable that the corresponding potential for liability accompanies that authority.  O.C.G.A. § 19-9-124 requires that the designated grandparent act in the best interests of the child.  However, assuming the grandparent does so, he or she will not be held liable for good faith decisions regarding consenting or refusing to consent to any medical treatment. [9]  Additionally, this section of the Act states that the grandparent has the right to enroll the child in the school district in which the grandparent resides.  The grandparent is required to provide the customary residency proof to the school district and the school district may request reasonable evidence of the parent’s hardship. [10]  As the grandparent will have no liability if acting in the best interests of the child, likewise, the school who acts in good faith reliance on a power of attorney will not be liable for acting upon that reliance.[11] As a safeguard against school district shopping, a parent must certify that the power of attorney is not for the primary purpose of enrolling a child in academic or athletic programs provided by the grandparent’s school district.[12]

In general, both parents are required to execute the power of attorney.  The requirement applies if both parents are alive and have joint legal custody.  Reasonably, a parent with sole permanent legal custody has the authority to grant to the power of attorney without the consent or signature of the other parent. [13]The power of attorney must be executed and notarized and the executing parent must send written notification to a noncustodial parent via certified mail or statutory overnight delivery within five days of execution.

The authority granted under the Power of Attorney for the Care of a Minor Child Act is subject to revocation and termination under O.C.G.A.§ 19-9-128.  The grandparent has the continuing authority to act on behalf of the child until each parent who executes the power of attorney revokes it in writing and provides notice of the revocation to the grandparent.[14]  The revoking parent has the responsibility to inform all involved schools and health care providers of the revocation.  However, upon a revocation of authority, the grandparent has the responsibility to notify a school when a change of circumstances lasting longer than six weeks results in a change of address outside of the grandparent’s school district.[15] As to be expected, an agent grandparent has the right to resign and a court of competent jurisdiction always has the power to terminate the power of attorney.[16]

Finally, the Act provides a standard form by which parents and grandparents can easily exercise the power of attorney option.

GEORGIA POWER OF ATTORNEY FOR THE CARE OF A MINOR CHILD

      NOTICE:

      (1) THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THE GRANDPARENT THAT YOU DESIGNATE (THE AGENT GRANDPARENT) POWERS TO CARE FOR YOUR MINOR CHILD, INCLUDING THE POWER TO: ENROLL THE CHILD IN SCHOOL AND IN EXTRACURRICULAR SCHOOL ACTIVITIES; HAVE ACCESS TO SCHOOL RECORDS AND DISCLOSE THE CONTENTS TO OTHERS; ARRANGE FOR AND CONSENT TO MEDICAL, DENTAL, AND MENTAL HEALTH TREATMENT FOR THE CHILD; HAVE ACCESS TO SUCH RECORDS RELATED TO TREATMENT OF THE CHILD AND DISCLOSE THE CONTENTS OF THOSE RECORDS TO OTHERS; PROVIDE FOR THE CHILD'S FOOD, LODGING, RECREATION, AND TRAVEL; AND HAVE ANY ADDITIONAL POWERS AS SPECIFIED BY THE PARENT.

      (2) THE AGENT GRANDPARENT IS REQUIRED TO EXERCISE DUE CARE TO ACT IN THE CHILD'S BEST INTEREST AND IN ACCORDANCE WITH THE GRANT OF AUTHORITY SPECIFIED IN THIS FORM.

      (3) A COURT OF COMPETENT JURISDICTION MAY REVOKE THE POWERS OF THE AGENT GRANDPARENT IF IT FINDS THAT THE AGENT GRANDPARENT IS NOT ACTING PROPERLY.

      (4) THE AGENT GRANDPARENT MAY EXERCISE THE POWERS GIVEN IN THIS POWER OF ATTORNEY FOR THE CARE OF A MINOR CHILD THROUGHOUT THE CHILD'S MINORITY UNLESS THE PARENT REVOKES THIS POWER OF ATTORNEY AND PROVIDES NOTICE OF THE REVOCATION TO THE AGENT GRANDPARENT OR UNTIL A COURT OF COMPETENT JURISDICTION TERMINATES THIS POWER.

      (5) THE AGENT GRANDPARENT MAY RESIGN AS AGENT AND MUST IMMEDIATELY COMMUNICATE SUCH RESIGNATION TO THE PARENT, AND IF COMMUNICATION WITH SUCH PARENT IS NOT POSSIBLE, THE AGENT GRANDPARENT SHALL NOTIFY CHILD PROTECTIVE SERVICES OR SUCH GOVERNMENT AUTHORITY THAT IS CHARGED WITH ASSURING PROPER CARE OF SUCH MINOR CHILD.

      (6) THIS POWER OF ATTORNEY MAY BE REVOKED IN WRITING BY ANY AUTHORIZING PARENT. IF THE POWER OF ATTORNEY IS REVOKED, THE REVOKING PARENT SHALL NOTIFY THE AGENT GRANDPARENT, SCHOOL, HEALTH CARE PROVIDERS, AND OTHERS KNOWN TO THE PARENT TO HAVE RELIED UPON SUCH POWER OF ATTORNEY.

      (7) IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.

      POWER OF ATTORNEY FOR THE CARE OF A MINOR CHILD

      made this___day of ____________,________ ;.

      (1) (A) I, (insert name and address of parent or parents), hereby appoint (insert name and address of grandparent to be named as agent) as attorney in fact (the agent grandparent) for my child (insert name of child) to act for me and in my name in any way that I could act in person.

      (B) I hereby certify that the agent grandparent named herein is the (place a check mark beside the appropriate description):

      Biological grandparent;

      Stepgrandparent;

      Biological great-grandparent; or

      Stepgreat-grandparent.

      (2) The agent grandparent may:

      (A) Enroll the child in school and in extracurricular activities, have access to school records, and may disclose the contents to others;

      (B) Arrange for and consent to medical, dental, and mental health treatment of the child, have access to such records related to treatment of the child, and disclose the contents of such records to others;

      (C) Provide for the child's food, lodging, recreation, and travel; and

      (D) Carry out any additional powers specified by the parent as follows:

      (3) The powers granted above shall not include the following powers or shall be subject to the following rules or limitations (here you may include any specific limitations that you deem appropriate):

      (4) This power of attorney for the care of a minor child is being executed because of the following hardship (initial all that apply):

      (A) The death, serious illness, or terminal illness of a parent;

      (B) The physical or mental condition of the parent or the child such that proper care and supervision of the child cannot be provided by the parent;

      (C) The loss or uninhabitability of the child's home as the result of a natural disaster;

      (D) The incarceration of a parent; or

      (E) A period of active military duty of a parent.

      (5) (Optional) If a guardian of my minor child is to be appointed, I nominate the following person to serve as such guardian: (insert name and address of person nominated to be guardian of the minor child).

      (6) I am fully informed as to all of the contents of this form and I understand the full import of this grant of powers to the agent grandparent.

      (7) I certify that the minor child is not emancipated, and, if the minor child becomes emancipated, this power of attorney shall no longer be valid.

      (8) Except as may be permitted by the federal No Child Left Behind Act, 20 U.S.C.A. Section 6301, et seq. and Section 7801, et seq., I hereby certify that this power of attorney is not executed for the primary purpose of unlawfully enrolling the child in a school so that the child may participate in the academic or interscholastic athletic programs provided by that school.

      (9) I certify that, to my knowledge, the minor child's welfare is not the subject of an investigation by the Department of Human Resources.

      (10) I declare under penalty of perjury under the laws of the State of Georgia that the foregoing is true and correct.

      Parent Signature:

      Printed name:

      Parent Signature:

      Printed name:

      Signed and sealed in the presence of:

      Notary public

      My commission expires

     (c) The following notice shall be attached to the power of attorney:

      "ADDITIONAL INFORMATION:

      To the grandparent designated as attorney in fact:

      (1) If a change in circumstances results in the child not living with you for more than six weeks during a school term and such change is not due to hospitalization, vacation, study abroad, or some reason otherwise acceptable to the school, you should notify in writing the school in which you have enrolled the child and to which you have given this power of attorney form.

      (2) You have the authority to act on behalf of the minor child until each parent who executed the power of attorney for the care of the minor child revokes the power of attorney in writing and provides notice of revocation to you as provided in O.C.G.A. Section 19-9-128.

      (3) If you are made aware of the death of the parent who executed the power of attorney, you must notify the surviving parent as soon as practicable. With the consent of the surviving parent, or if the whereabouts of the surviving parent are unknown, the power of attorney may continue for up to six months so that the child may receive consistent care until more permanent custody arrangements are made.

      (4) You may resign as agent by notifying each parent in writing by certified mail or statutory overnight delivery, return receipt requested, and if you become unable to care for the child, you shall cause such resignation to be communicated to the parent. If communication with such parent is not possible, you must notify child protective services or such government authority that is charged with assuring proper care of such minor child.

      To school officials:

      (1) Except as provided in the policies and regulations of the county school board and the federal No Child Left Behind Act, 20 U.S.C.A. Section 6301, et seq. and Section 7801, et seq., this power of attorney, properly completed and notarized, authorizes the agent grandparent named herein to enroll the child named herein in school in the district in which the agent grandparent resides. That agent grandparent is authorized to provide consent in all school related matters and to obtain from the school district educational and behavioral information about the child. Furthermore, this power of attorney shall not prohibit the parent of the child from having access to all school records pertinent to the child.

      (2) The school district may require such residency documentation as is customary in that school district.

      (3) No school official who acts in good faith reliance on a power of attorney for the care of a minor child shall be subject to criminal or civil liability or professional disciplinary action for such reliance.

      To health care providers:

      (1) No health care provider who acts in good faith reliance on a power of attorney for the care of a minor child shall be subject to criminal or civil liability or professional disciplinary action for such reliance.

      (2) The parent continues to have the right to all medical, dental, and mental health records pertaining to the minor child.

The legislature should be applauded for providing support to families where it had previously been lacking.  Of course, as grandparents avail themselves of the Power of Attorney for the Care of a Minor Child Act, we will have the opportunity to gauge its effectiveness and whether it is used, not abused.