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AB-1163 Minors: power of attorney to care for a minor child.(2017-2018)

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Date Published: 06/04/2018 02:00 PM
AB1163:v93#DOCUMENT

Amended  IN  Senate  June 04, 2018
Amended  IN  Senate  September 07, 2017
Amended  IN  Senate  June 22, 2017
Amended  IN  Assembly  May 26, 2017
Amended  IN  Assembly  May 01, 2017
Amended  IN  Assembly  April 04, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 1163

Introduced by Assembly Member Irwin Members Irwin and Limón

February 17, 2017

An act to add Part 1.7 (commencing with Section 6570) to Division 11 of the Family Code, 5 (commencing with Section 4560) to Division 4.5 of the Probate Code, relating to minors.


LEGISLATIVE COUNSEL'S DIGEST


AB 1163, as amended, Irwin. Minors: power of attorney to care for a minor child.
Existing law authorizes a caregiver, who properly completes and signs a caregiver’s authorization affidavit, to provide specified care to a minor, including, among other care, enrolling the enroll a minor in school and consenting consent to school-related medical care on behalf of the minor. Existing law authorizes a caregiver who is a relative and properly completes and signs a caregiver’s authorization affidavit to consent to additional types of medical and dental care for the minor. Existing law, the Power of Attorney Law, generally provides for the creation, modification, and revocation of a power of attorney. attorney, defined as a written instrument that is executed by a natural person having the capacity to contract and that grants authority to an attorney-in-fact, also known as an agent, to act for that person, as specified.
This bill would enact the Power of Attorney to Care for a Minor Child Act to authorize a parent one or both parents to execute a power of attorney to provide for the care of the parent’s minor child, child only under certain terms and if specified information is included within the power of attorney, except as specified. including the effective date of the power of attorney. The bill would relieve a person who acts in good faith reliance on the authorized powers set forth in a power of attorney and without actual contrary knowledge from criminal or civil liability or professional discipline for that reliance, but would not relieve a person from liability for violations of other provisions of law. The
The bill would require the grant of authority in a power of attorney to care for a minor child to supersede the authority of a caregiver pursuant to a caregiver’s authorization affidavit. The bill would address the authority of an attorney-in-fact when 2 or more powers of attorney appoint 2 or more different attorneys-in-fact for the care of the same minor child. The bill would also make a power of attorney under these provisions act as the executing parent’s nomination of a guardian, subject to specified requirements, for purposes of a legal guardianship proceeding if that proceeding commences. The bill would specify that a power of attorney executed pursuant to these provisions would not affect the rights of the minor child’s parents regarding the care, custody, and control of the minor child, including the rights of a parent who had not executed the power of attorney.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Part 5 (commencing with Section 4560) is added to Division 4.5 of the Probate Code, to read:

PART 5. Power of Attorney to Care for a Minor Child Act

4560.
 This part may be known, and shall be cited, as the Power of Attorney to Care for a Minor Child Act.

4562.
 A parent of a minor child may execute a power of attorney to provide for the care of the parent’s minor child only pursuant to this part. A power of attorney to care for the parent’s minor child shall comply with, and is subject to, this division and shall additionally include all of the following information:
(a) Name and address of the parent executing the power of attorney.
(b) (1) Name and address of the parent who did not execute the power of attorney, if known.
(2) The information described in subdivision (b) of Section 4564.
(c) Name and address of the attorney-in-fact or agent who is authorized to provide care for the minor child.
(d) Name and birth date of the minor child.
(e) (1) Specification of the authorized powers of the attorney-in-fact or agent to provide care for the minor child.
(2) Special instructions limiting or extending the powers granted to the attorney-in-fact or agent.
(f) The effective date or conditions of effectiveness pursuant to either of the following:
(1) The date and the duration or period of time that the power of attorney takes effect.
(2) The occurrence of a specified event or contingency, including, but not limited to, the incapacity, absence, or detention of the principal, that causes the power of attorney to take effect.
(g) The date of the execution of the power of attorney.
(h) All of the following information in substantially the same form:

(1) TO SCHOOL OFFICIALS:

This power of attorney constitutes a sufficient basis for a determination that the attorney-in-fact or agent has certain powers to provide care for the minor child as specified by the executing parent in the power of attorney, unless the school district has actual knowledge of facts contrary to those stated in the power of attorney.

(2) TO HEALTH CARE PROVIDERS AND HEALTH CARE SERVICE PLANS:

A person who acts in good faith reliance upon a power of attorney for the care of a minor child allowing an attorney-in-fact or agent to consent to and direct medical, dental, or mental health care, without actual knowledge of facts contrary to those stated in the power of attorney, is not subject to criminal liability or to civil liability to any person, and is not subject to professional disciplinary action, for that reliance on the power of attorney.

(3) TO ALL OTHER THIRD PARTIES:

A person who acts in good faith reliance upon a power of attorney for the care of a minor child allowing an attorney-in-fact or agent to consent to and direct care of the minor child, handle finances for the minor child, or other related matters pertaining to the minor child, without actual knowledge of facts contrary to those stated in the power of attorney, is not subject to criminal liability or to civil liability to any person, and is not subject to professional disciplinary action, for that reliance on the power of attorney.

4564.
 (a) A power of attorney executed pursuant to this part shall be executed according to one of the following conditions:
(1) If both parents are living and have legal custody of the minor child, both parents shall execute the power of attorney, except under the conditions specified in paragraph (2).
(2) If both parents are living and have legal custody of the minor child, one parent may execute the power of attorney only if obtaining the approval of the other parent is not possible because that parent’s location is unknown or reasonably inaccessible, or that parent is not capable of approving the power of attorney.
(3) If only one parent has legal custody of the minor child, that parent shall execute the power of attorney.
(b) The parent executing the power of attorney shall declare in the power of attorney which one of the following circumstances applies:
(1) Both parents are living, have legal custody of the minor child, and executed the power of attorney.
(2) Both parents are living and have legal custody of the minor child, but obtaining the approval of the parent who has not executed the power of attorney is not possible because that parent’s location is unknown or reasonably inaccessible, or that parent is not capable of approving the power of attorney.
(3) One parent is deceased.
(4) Only one parent has legal custody of the minor child, and that parent has executed the power of attorney.

4566.
 A power of attorney executed pursuant to this part is legally sufficient if all of the following requirements are satisfied:
(a) The power of attorney contains the information listed in Section 4562.
(b) The power of attorney is executed by one or both parents in compliance with Section 4564.
(c) The power of attorney is either (1) acknowledged before a notary public, or (2) signed by at least two witnesses who satisfy the requirements of Section 4122.

4568.
 (a) A power of attorney executed pursuant to this part may be modified or revoked pursuant to the applicable provisions of Chapter 3 (commencing with Section 4150) of Part 2.
(b) An attorney-in-fact, agent, or third person who does not have notice of the modification or revocation is protected from liability as provided in Chapter 5 (commencing with Section 4300) of Part 2.

4569.
 (a) A power of attorney executed pursuant to this part that limits the power to take effect upon the occurrence of a specified event or contingency, including, but not limited to, the incapacity, absence, or detention of the principal, may contain a provision designating one or more persons who, by a written declaration under penalty of perjury, have the power to determine conclusively that the specified event or contingency has occurred.
(b) A power of attorney executed pursuant to this part that contains the provision described in subdivision (a) becomes effective when the person or persons designated in the power of attorney execute a written declaration under penalty of perjury that the specified event or contingency has occurred, and any person may act in reliance on the written declaration without liability to the principal or to any other person, regardless whether the specified event or contingency has actually occurred.
(c) The provision described in subdivision (a) may be included in the special instructions portion of the form set forth in paragraph (2) of subdivision (e) of Section 4562.
(d) Subdivisions (a) and (b) do not provide the exclusive method by which a power of attorney executed pursuant to this part may be limited to take effect upon the occurrence of a specified event or contingency.

4570.
 A power of attorney executed pursuant to this part shall remain in effect until such time as is designated in the power of attorney pursuant to subdivision (f) of Section 4562 or until it is revoked by the executing parent, a court order, or operation of law, whichever is earlier.

4572.
 (a) (1) A person who acts in good faith reliance on the authorized powers set forth in a power of attorney executed pursuant to this part, without actual knowledge of facts contrary to those stated in the power of attorney, shall not be subject to criminal liability or to civil liability to any person, and shall not be subject to professional disciplinary action, for that reliance.
(2) Paragraph (1) shall apply even if medical, dental, or mental health care is provided to a minor child in contravention of the wishes of a parent or other person having legal custody of the minor child, as long as the person providing the medical, dental, or mental health care has no actual knowledge of the wishes of the parent or other person having legal custody of the minor child.
(b) A person who relies on a power of attorney executed pursuant to this part has no obligation to make any further inquiry or investigation.
(c) This section shall not be deemed to relieve a person from liability for violations of other provisions of law.

4574.
 An attorney-in-fact or agent under a power of attorney executed pursuant to this part shall be 18 years of age or older and shall exercise due care to act in the minor child’s best interests and in accordance with the grant of authority specified in the power of attorney and with any applicable state or federal law.

4576.
 (a) If two or more powers of attorney validly executed pursuant to this part appoint two or more different attorneys-in-fact or agents for the care of the same minor child, those attorneys-in-fact or agents may elect to exercise the authority granted to them under the powers of attorney by their unanimous action pursuant to subdivision (b) of Section 4202.
(b) If the attorneys-in-fact or agents described in subdivision (a) do not elect to exercise the authority granted to them under the powers of attorney by their unanimous action pursuant to subdivision (b) of Section 4202, a court of competent jurisdiction shall determine which power of attorney has priority over the other.

4578.
 The authorized powers provided to an attorney-in-fact or agent pursuant to this part shall supersede the authority of a caregiver pursuant to a caregiver’s authorization affidavit signed in compliance with Part 1.5 (commencing with Section 6550) of Division 11 of the Family Code, even if the caregiver’s authorization affidavit was signed after the power of attorney was executed.

4580.
 (a) A power of attorney validly executed pursuant to this part shall constitute a writing pursuant to Section 1502 and shall act as the executing parent’s nomination of a guardian, subject to the requirements of Article 1 (commencing with Section 1500) of Chapter 1 of Part 2 of Division 4, for purposes of a legal guardianship proceeding if that proceeding commences.
(b) A court of competent jurisdiction shall retain jurisdiction over the guardianship of the minor child or the minor child’s estate despite any existing power of attorney.

4582.
 A power of attorney executed pursuant to this part shall not do any of the following:
(a) Affect the rights of the minor child’s parents regarding the care, custody, and control of the minor child, including the rights of a parent who had not executed the power of attorney.
(b) Grant the attorney-in-fact or agent with legal custody of the minor child.
(c) Authorize the attorney-in-fact or agent to consent to the marriage or adoption of the minor child.
(d) Supersede a court order relating to the minor child.
(e) Relieve a parent from any legal responsibilities or liability for the minor child.

4584.
 (a) For purposes of this part, “legal custody” shall mean the right and the responsibility of a parent to make the decisions relating to the health, education, and welfare of a child.
(b) For purposes of this part, “person” shall include an individual, corporation, partnership, association, other legal entity, the state, a city, county, city and county, or other public entity or governmental subdivision or agency.

SECTION 1.Part 1.7 (commencing with Section 6570) is added to Division 11 of the Family Code, to read:
1.7.Power of Attorney to Care for Minor Child
6570.

(a)(1)Except as provided in paragraph (2), a parent of a minor child may execute a power of attorney to provide for the care of the parent’s minor child. A power of attorney to care for a minor child shall comply with, and is subject to, the Power of Attorney Law (Division 4.5 (commencing with Section 4000) of the Probate Code) and shall additionally include all of the following:

(A)Name and address of the parent executing the power of attorney.

(B)The name and address of the parent who did not execute the power of attorney and whether that parent has authority to care for the minor child, if known.

(C)Name and address of the attorney-in-fact or agent who is authorized to provide the care for the minor child.

(D)Name and birthdate of minor child.

(E)Specification of the authorized powers of the attorney-in-fact or agent to provide care for the minor child.

(2)A power of attorney shall not provide an attorney-in-fact or agent with the authority to consent to the marriage or adoption of the minor child.

(b)(1)A person who acts in good faith reliance on the authorized powers set forth in a power of attorney executed pursuant to this section, without actual knowledge of facts contrary to those stated in the power of attorney, shall not be subject to criminal liability or to civil liability to any person, and shall not be subject to professional disciplinary action, for that reliance. This subdivision shall apply even if medical or dental care is provided to a minor child in contravention of the wishes of a parent or other person having legal custody of the minor child as long as the person providing the medical or dental care has no actual knowledge of the wishes of the parent or other person having legal custody of the minor child.

(2)A person who relies on a power of attorney has no obligation to make any further inquiry or investigation.

(3)This section shall not be deemed to relieve a person from liability for violations of other provisions of law.

(c)The authorized powers provided to an attorney-in-fact or agent pursuant to a power of attorney to care for a minor child shall supersede the authority of a caregiver pursuant to a caregiver’s authorization affidavit signed in compliance with Part 1.5 (commencing with Section 6550), even if the caregiver affidavit was signed after the power of attorney was created.

(d)A power of attorney to care for a minor child shall not be deemed to affect the rights of the minor child’s parents regarding the care, custody, and control of the minor child, and shall not be deemed to grant the attorney-in-fact or agent with legal custody of the minor child.

(e)For purposes of this part, “person” includes an individual, corporation, partnership, association, the state, or any city, county, city and county, or other public entity or governmental subdivision or agency, or any other legal entity.