81R3257 JSC-F

By: Villarreal H.B. No. 804

A BILL TO BE ENTITLED

AN ACT

relating to authorizing a power of attorney for the medical care and education of a child.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Chapter 151, Family Code, is amended by designating Sections 151.001, 151.002, and 151.003 as Subchapter A and adding a heading to Subchapter A to read as follows:

SUBCHAPTER A. RIGHTS AND DUTIES IN GENERAL

SECTION 2. Chapter 151, Family Code, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. POWER OF ATTORNEY FOR MEDICAL CARE AND EDUCATION OF

CHILD

Sec. 151.051. EFFECT OF POWER OF ATTORNEY. A power of attorney under this subchapter is effective only if:

(1) at least one parent of a child has executed a power of attorney for the medical care and education of the child; and

(2) neither parent is able to make decisions regarding the care of the parent's child, including a situation in which neither parent can be reached.

Sec. 151.052. AUTHORIZATION FOR POWER OF ATTORNEY FOR MEDICAL CARE AND EDUCATION OF CHILD. A person may execute a power of attorney appointing another person as the person's agent to make decisions regarding the medical care and education of the person's child.

Sec. 151.053. FORM. (a) A power of attorney for the medical care and education of a child must be in substantially the following form:

POWER OF ATTORNEY FOR THE MEDICAL CARE AND EDUCATION OF A CHILD

Part I: To be filled out and/or initialed by parent(s). Minor Child's Name_________________________________ Mother/Legal Guardian's Name & Address ______________________________ ______________________________ ______________________________ Father/Legal Guardian's Name & Address ______________________________ ______________________________ ______________________________ Caregiver's Name & Address ______________________________ ______________________________ ______________________________

(check one of the following)

(____) Both parents are living and have signed this document;

(____) One parent is deceased;

(____) The parent-child relationship has been terminated for one of the parents;

(____) The decision-making authority of one parent has been limited by a court order;

(____) One parent is the sole managing conservator of the minor child and has sent a copy of this document, by certified mail, return receipt requested, to the other parent at that parent's last known address; or

(____) The other parent has not consented to the appointment or consent cannot be obtained because ______________________________.

Temporary care-giving authority regarding the minor child will be given to the caregiver during the period of the following type(s) of hardship (check at least one):

(____) the serious illness or incarceration of a parent or legal guardian;

(____) the physical or mental condition of the parent or legal guardian or the child is such that care and supervision of the child cannot be provided;

(____) the need for medical or mental health treatment (including substance abuse treatment) by the parent or legal guardian;

(____) the military deployment of the parent or legal guardian; or

(____) other (please describe) __________________________________________________, at a time when the other parent or legal guardian, if applicable, is unable to care for the child.

(____) I/We the undersigned, authorize the named caregiver to do one or more of the following (check as appropriate):

(_____) enroll the child in school and extracurricular activities;

(_____) obtain medical, dental, and mental health treatment for the child; and

(_____) provide for the child's food, lodging, housing, recreation, and travel.

(____) I/We grant the following additional powers to the named caregiver:___________________________________________.

(____) I/We understand that this document does not provide legal custody to the caregiver. If at any time I/we disagree with a decision of the named caregiver or choose to make any health care or educational decisions for my/our child, I/we must revoke the power of attorney, in writing, and provide written documentation to the health care provider and the local education agency (i.e., school).

(____) I/We understand that this document may be terminated by another written document signed by either parent with legal authority or by any order of a court with competent jurisdiction.

Part II: To be initialed by caregiver as applicable.

(____) I understand that this document, properly executed, gives me the right to enroll the minor child in the local education agency serving the area where I reside.

(____) I understand that this document does not provide me with legal custody of the minor child.

(____) I understand that, prior to enrollment, the local education agency may require documentation of the minor child's residence with a caregiver and/or documentation or other verification of the validity of the stated hardship.

(____) I understand that, except to the extent limited by federal law, I shall be assigned the rights, duties, and responsibilities that would otherwise be assigned to the parent, legal guardian, or legal custodian of the minor child.

(____) I understand that if the minor child ceases to reside with me, I am required by law to notify any person, school, or health care provider to whom I have given this document.

I/We declare under penalty of perjury under the laws of the State of Texas that the foregoing is true and correct. Signed this ___ day of __________, 20__. ______________________________ Mother/Legal Guardian

The Mother/Legal Guardian, ______________________, personally appeared before me this _____ day of ____________, 20__.

______________________________

Notary Public in and for the State of Texas

My commission expires: ___________________ Signed this ___ day of __________, 20__. ______________________________ Father/Legal Guardian

The Father/Legal Guardian, ______________________, personally appeared before me this _____ day of ____________, 20__.

______________________________

Notary Public in and for the State of Texas

My commission expires: ___________________ Signed this ___ day of __________, 20__. ______________________________ Caregiver

The Caregiver, ______________________, personally appeared before me this _____ day of ____________, 20__.

______________________________

Notary Public in and for the State of Texas

My commission expires: ___________________

NOTICE TO THE LOCAL EDUCATION AGENCY AND/OR HEALTH CARE PROVIDER: No person, school official, or health care provider who acts in good faith reliance on a power of attorney for care of a minor child to enroll the child in school or to provide medical, dental, or mental health care, without actual knowledge of facts contrary to those authorized, is subject to criminal or civil liability to any person, or is subject to professional disciplinary action for such reliance. This immunity applies even if medical, dental, or mental health care is provided to a minor child or the child is enrolled in a school in contravention of the wishes of the child's parent, if the person, school official, or health care provider has been provided a copy of an appropriately executed power of attorney for care of the minor child and has not been provided written documentation that the parent has revoked the power of attorney for care of the minor child. Nothing in this document relieves any individual from liability for a violation of any other law.

(b) A power of attorney for the medical care and education of a child is legally sufficient under this chapter if the wording of the form complies substantially with Subsection (a), the form is properly completed, and the signatures of the parent or parents, as applicable, and the caregiver are acknowledged.

Sec. 151.054. TERMINATION OF AGENT'S AUTHORITY. (a) The authority of an agent appointed in a power of attorney for the medical care and education of a child executed by the child's parent or parents terminates:

(1) on the appointment and qualification of a guardian of the person appointed for the child under Chapter XIII, Texas Probate Code; or

(2) on revocation of the power of attorney by either parent who executed the power of attorney.

(b) An agent's authority with regard to a child under a power of attorney is terminated if a parent of the child who did not execute the power of attorney presents to the court evidence that the parent is able to make decisions regarding the care of the child.

Sec. 151.055. USE OF POWER OF ATTORNEY IN APPOINTING GUARDIAN OF THE PERSON FOR CHILD. (a) A power of attorney for the medical care and education of a child executed under this subchapter is not considered a written declaration of appointment of a guardian authorized by Section 676(d), Texas Probate Code.

(b) If a person who executes a power of attorney for the medical care and education of a child under this subchapter does not execute a written declaration of appointment of a guardian authorized by Section 676(d), Texas Probate Code, and an application for the appointment of a guardian of the person for the child is pending under Chapter XIII, Texas Probate Code, the court may consider the person appointed as the agent under the power of attorney for the medical care and education of a child in appointing a qualified person to serve as guardian of the person for the child under Section 676(c), Texas Probate Code.

SECTION 3. This Act takes effect September 1, 2009.