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Procedural Changes for Grandparent Caregivers

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. 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". 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. Section 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. 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.

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. 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. 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. Finally, the Act allows the parent to add any additional powers necessary for the care of the child.

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. Section 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. 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. 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. 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.

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. 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. Section 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. 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. 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.

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

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