sb88_LC_29_3112S_hss

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08 LC 29 3112S

The House Committee on Judiciary offers the following substitute to SB 88:

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 9 of Title 19 of the Official Code of Georgia Annotated, relating to child custody proceedings, so as to provide for the creation, authorization, procedure, revocation, and termination of a power of attorney from a parent to a grandparent for the care of a grandchild; to provide for short titles; to provide definitions; to provide for the creation of a program to provide a subsidy to certain grandparents raising grandchildren under certain circumstances; to provide for an assessment and evaluation of certain aspects of the program; to provide for other related matters; to provide effective dates; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

This Act shall be known and may be cited as the "Care of a Grandchild Act."

SECTION 2.

The General Assembly finds that:

(1) An increasing number of relatives in Georgia, including grandparents and great-grandparents, are providing care to children who cannot reside with their parents due to the parent´s incapacity or inability to perform the regular and expected functions to provide such care and support;

(2) Parents need a means to confer to grandparents or great-grandparents the authority to act on behalf of grandchildren without the time and expense of a court proceeding;

(3) Grandparents and great-grandparents caring for their grandchildren under these circumstances often do not have sufficient financial resources to provide for such children; and

(4) Providing both a statutory mechanism for granting authority and limited financial support under certain circumstances to provide for children enhances family preservation and stability.

SECTION 3.

Chapter 9 of Title 19 of the Official Code of Georgia Annotated, relating to child custody proceedings, is amended by adding a new article to read as follows:

"ARTICLE 4
Part 1

19-9-120.

This part shall be known and may be cited as the 'Power of Attorney for the Care of a Minor Child Act.'

19-9-121.

As used in this part, the term:

(1) 'Grandchild' means the minor child of a grandparent.

(2) 'Grandparent' shall have the same meaning as provided in subsection (a) of Code Section 19-7-3 and shall include the biological great-grandparent or stepgreat-grandparent who is the parent or stepparent of a grandparent of a minor child.

(3) 'Parent' shall have the same meaning as provided in Code Section 19-3-37. Such term used in the singular shall mean both parents if both parents share joint legal custody of the child, unless otherwise clearly indicated.

(4) 'Reasonable evidence' means evidence that a reasonable person would find sufficient to determine whether one conclusion is more likely than another.

(5) 'School' means:

(A) Any county or independent school system as defined in Code Section 20-1-9;

(B) Any private school as such term is defined in Code Section 20-2-690;

(D) Pre-kindergarten programs; or

(E) Early care and education programs as such term is defined in paragraph (6) of Code Section 20-1A-2.

(6) 'School term' means the part of the year in which school is in session.

(7) 'Serious illness' means a physical or mental illness as determined by a licensed health care professional, including a psychiatrist or psychologist, that causes the parent to be unable to care for the minor child due to the physical or mental condition or health of the parent, including a condition created by medical treatment.

(8) 'Terminal illness' has the same meaning as the term 'terminal condition' as provided in paragraph (14) of Code Section 31-32-2.

19-9-122.

(a) A parent of a minor child may delegate to any grandparent residing in this state caregiving authority regarding the minor child when hardship prevents the parent from caring for the child. This authority may be delegated without the approval of a court by executing in writing a power of attorney for the care of a minor child in a form substantially complying with the provisions of this part.

(b) Hardships may include, but are not limited to:

(1) A parent being unable to provide care due to the death of the other parent;

(2) A serious illness or terminal illness of a parent;

(3) 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;

(4) The incarceration of a parent;

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

(6) A period of active military duty of a parent exceeding 24 months.

(c) Hardship shall not include the granting of a power of attorney for the care of a minor child for the purpose of subverting an investigation of the child´s welfare initiated by the Department of Human Resources or other agency responsible for such investigations.

19-9-123.

Through the power of attorney for the care of a minor child, the parent may authorize the agent grandparent to perform the following functions:

(1) Enroll the child in school and in extracurricular activities;

(2) Enroll the child in any health insurance program offered to the grandparent;

(3) Provide access to school records and may disclose the contents to others;

(4) Arrange for and consent to medical, dental, and mental health treatment for the child;

(5) Provide access to medical, dental, and mental health records and may disclose the contents thereof to others;

(6) Provide for the child´s food, lodging, housing, recreation, and travel; and

(7) Any additional powers as specified by the parent.

19-9-124.

(a) An agent grandparent under a power of attorney for the care of a minor child shall act in the best interests of the minor child. Such agent grandparent shall not be liable for consenting or refusing to consent to medical, dental, or mental health care for a minor child when such decision is made in good faith and is exercised in the best interests of the minor child.

(b)(1) The agent grandparent shall have the right to enroll the minor child in a public school serving the area where the agent grandparent resides and may enroll the minor child in a private school, pre-kindergarten program, or home study program.

(2) The public school shall allow such agent grandparent with a properly executed power of attorney for the care of a minor child to enroll the minor child.

(3) At the time of enrollment the grandparent shall provide to the school such residency documentation as is customary in that school district.

(4) The school may request reasonable evidence of the stated hardship.

(5) If a public school denies enrollment of a minor child under this Code section, such denial may be appealed and shall be treated as any other denial of enrollment of a child in that school district, including all of the remedies otherwise available when enrollment is denied to a child.

(6) Except where limited by federal law, the agent grandparent shall have the same rights, duties, and responsibilities that would otherwise be exercised by the parent pursuant to the laws of this state.

(7) An agent grandparent shall be obligated to comply with any existing court order relative to the child, including, but not limited to, any visitation order.

19-9-125.

No person, school official, or 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.

19-9-126.

Nothing in this part shall preclude a parent or agent grandparent from granting temporary written permission to seek emergency medical treatment or other services for a minor child while in the custody of an adult who is not the parent or agent grandparent and who is temporarily supervising the child at the parent´s or agent grandparent´s request.

19-9-127.

(a) 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., a parent executing the power of attorney for the care of a minor child shall certify that such action is not for the primary purpose of enrolling the child in a school for the sole purpose of participating in the academic or interscholastic athletic programs provided by that school or for any other unlawful purpose. Violation of this subsection shall be punishable in accordance with Georgia law and may require, in addition to any other remedies, repayment by such parent or grandparent of all costs incurred by the school as a result of the violation.

(b)(1) The instrument providing for the power of attorney for the care of a minor child shall be executed by both parents, if both parents are living and have joint legal custody of the minor child, and shall specify which hardship prevents the parent or parents from caring for the child. If the parents do not have joint legal custody, the parent having sole permanent legal custody shall have authority to grant the power of attorney.

(2) The power of attorney for the care of a minor child shall be signed and acknowledged before a notary public by the parent executing the power of attorney. Any noncustodial parent shall be notified in writing of the name and address of the grandparent who has been appointed the agent grandparent under the power of attorney. The executing parent shall send the notification by certified mail or statutory overnight delivery, return receipt requested, to the noncustodial parent at the noncustodial parent´s last known address within five days of the execution of the power of attorney. A noncustodial parent who has joint legal custody shall have the same authority to execute a revocation of the power of attorney as granted to the custodial parent.

(c) If only one parent has sole permanent legal custody of the minor child, then that parent shall have authority to execute the power of attorney for the care of a minor child and to revoke the power of attorney.

19-9-128.

(a)(1) The agent grandparent shall have the authority to act on behalf of the minor child until each parent who executed the power of attorney for the care of a minor child revokes the power of attorney in writing and provides notice of the revocation to the agent grandparent as provided in this Code section.

(2) The agent grandparent shall have the authority to act on behalf of the child until a copy of the revocation of the power of attorney is received by certified mail or statutory overnight delivery, return receipt requested, and upon receipt of the revocation the agent grandparent shall cease to act as agent.

(3) The parent shall send a copy of the revocation of the power of attorney to the agent grandparent within five days of the execution of the revocation by certified mail or statutory overnight delivery, return receipt requested.

(4) The revoking parent shall notify the school, health care providers, and others known to the parent to have relied upon such power of attorney.

(b) The power of attorney for the care of a minor child may also be terminated by any order of a court of competent jurisdiction.

(c)(1) The agent grandparent shall notify the school in which the agent grandparent had enrolled the child whenever a change in circumstances results in a change in residence for such child that is expected to last more than six weeks during a school term and such change in residence is not due to hospitalization, vacation, study abroad, or some reason otherwise acceptable to the school.

(2) The agent grandparent may resign by notifying the parent in writing by certified mail or statutory overnight delivery, return receipt requested, and, if the agent grandparent is aware that the parent´s hardship still exists, such agent grandparent shall also notify child protective services or such government authority that is charged with assuring proper care of such minor child.

(3) Upon the death of the authorizing parent, the agent grandparent shall notify the surviving parent as soon as practicable. With consent of the surviving parent or if the whereabouts of the surviving parent are unknown, the power of attorney for the care of a minor child may continue for up to six months so that the child may receive consistent care until more permanent custody arrangements are made.

(d) The authority to designate an agent to act on behalf of a minor child is in addition to any other lawful action a parent may take for the benefit of such minor child, and the parent shall continue to have the right to medical, dental, mental health, and school records pertaining to the minor child.

19-9-129.

(a) The statutory power of attorney for the care of a minor child form contained in this Code section may be used to grant an agent grandparent powers over the minor child´s enrollment in school, medical, dental, and mental health care, food, lodging, recreation, travel, and any additional powers as specified by the parent. This power of attorney is not intended to be exclusive. No provision of this part shall be construed to bar use by the parent of any other or different form of power of attorney for the care of a minor child which complies with this part. A power of attorney for the care of a minor child in substantially the form set forth in this Code section shall have the same meaning and effect as prescribed in this part. Substantially similar forms may include forms from other states.

(b) The power of attorney for the care of a minor child shall be in substantially the following form:

'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;

(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_________________'

'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.'

Part 2

19-9-140.

This part shall be known and may be cited as the 'Grandchildren´s Caregiver Subsidy Act.'

19-9-141.

As used in this part, the term:

(1) 'Area agency on aging' shall have the same meaning as provided in paragraph (2) of Code Section 49-6-72.

(2) 'Department' means the Department of Human Resources.

(3) 'Division' means the Division of Aging Services of the Department of Human Resources.

(4) 'Electronic funds transfer card' means a process of providing financial support through the use of a card to which funds may be regularly added by electronic means and for which restrictions on the use of such funds apply.

(5) 'Grandchild caregiver subsidy' means the aid provided on behalf of children under the terms of this part.

(6) 'Grandparent' shall have the same meaning as provided in subsection (a) of Code Section 19-7-3 and shall also mean the biological great-grandparent or stepgreat-grandparent who is the parent or stepparent of a grandparent of a minor child.

(7) 'Parent' shall have the same meaning as provided in Code Section 19-3-37.

19-9-142.

(a) The department shall establish a program for providing a grandchild caregiver subsidy to eligible persons pursuant to this part.

(b) Upon funds being appropriated by the General Assembly, the grandchild caregiver subsidy shall be provided on behalf of any minor child:

(1) Who is in the legal custody or under temporary or permanent guardianship of a grandparent who resides in Georgia;

(2) Whose grandparent has an annual income less than 200 percent of the federal poverty level for the number of dependents including grandchildren and great-grandchildren living in the household;

(3) Whose grandparent giving care has experienced hardship as defined in subsection (b) of Code Section 19-9-122; and

(4) Whose grandparent is participating in a grandparent raising grandchildren support program sponsored by the area agency on aging for the regional area in which that grandparent resides.

(c) A grandparent meeting the criteria in subsection (b) of this Code section shall receive a monthly grandchild caregiver subsidy equal to 80 percent of the state-wide average foster care rate for each minor grandchild who is in the legal custody or under temporary or permanent guardianship of such grandparent. Such grandparent shall remain eligible for the grandchild caregiver subsidy for each month that such grandchild or great-grandchild continues to live with the grandparent, provided that the other criteria under this part are met.

(d) Any grandchild caregiver subsidy shall be provided to a grandparent for the benefit of the grandchild or great-grandchild through use of an electronic funds transfer card or such other means as the department shall determine appropriate if the electronic funds transfer card is not a viable option for a grandparent and shall not affect the eligibility of the grandchild or great-grandchild to receive Medicaid or PeachCare for Kids benefits or benefits from any other state or federal program for which the grandchild or great-grandchild would otherwise be eligible.

(e)(1) Grandparents in every area agency on aging region in this state may request participation in this program.

(2) The department shall provide for the implementation of the program and shall ensure that:

(A) No more than 1,500 families at any given time shall be participating in the program;

(B) No later than the fifth day of each month the grandparent shall provide written affirmation that the grandchild or great-grandchild continues to live in the grandparent´s household;

(C) Each area agency on aging confirms that the grandparent and grandchild are continuing to participate in the grandparent support program;

(D) A periodic verification of eligibility to remain in the program shall be completed at least annually for each family participating in the program;

(E) Each grandparent receiving the subsidy periodically affirms that the grandchild caregiver subsidy funds are being used for the following permitted purposes:

(i) The purchase of goods, including clothing, food, toiletries, diapers, school supplies, and other educational materials such as books and other supplements, car seats, prescription drugs and over the counter medicines, and such other items as the department may determine appropriate; and

(ii) The purchase of services, including medical copayments, dental care, child care, school expenses, and activities fees, rent or housing related expenses, transportation expenses such as public transportation fares, car repairs, gasoline, or other transportation costs, and such other services as the department may determine appropriate; and

(F) The grandchild caregiver subsidy funds shall not be used for the purchase of tobacco products, liquor, beer, wine, lottery tickets, firearms, or any item or substance which is illegal for a minor to possess, receive, or consume.

(f) Any grandparent participating in the grandchild caregiver subsidy program who knowingly fails to comply with the requirements of the program or who knowingly fails to notify the department when the grandparent no longer meets the eligibility requirements for the grandchild caregiver subsidy program under subsection (c) of this Code section shall be punished in accordance with Georgia law and shall, in addition to all other remedies, repay all grandchild caregiver subsidy amounts paid during the period of ineligibility and all costs associated with any action taken by the department in connection with such ineligibility.

(g) A yearly status report shall be submitted from each area agency on aging grandparent support program to the department´s division.

(h) The department shall provide for evaluation of the grandchild caregiver subsidy program during the first two years of the program if sufficient funding is appropriated for that purpose as a part of the grandchild caregiver subsidy program. The results of such evaluation shall be published to the General Assembly during the session following the second year of the evaluation.

(i) For each case in which a grandparent is receiving a grandchild caregiver subsidy, the department shall pursue child support from both parents and the grandparents shall cooperate with all efforts to collect child support."

SECTION 4.

Part 1 of Article 4 of Chapter 9 of Title 19 enacted by Section 3 of this Act shall become effective upon its approval by the Governor or its becoming law without such approval. The remaining provisions of this Act shall become effective July 1, 2008.

SECTION 5.

All laws and parts of laws in conflict with this Act are repealed.