House Bill 1258

AN ACT TO ALLOW A NONLEGAL CUSTODIAN TO GIVE LEGAL CONSENT FOR A CHILD IN HIS CUSTODY TO RECEIVE MEDICAL OR EDUCATIONAL SERVICES; TO PROVIDE THAT SUCH CONSENT SHALL BE SUPERSEDED BY ANY DECISION OF A PERSON HAVING LEGAL CUSTODY; TO PROVIDE IMMUNITY TO REQUIRE A NONLEGAL CUSTODIAN TO EXECUTE AN AFFIDAVIT; TO PROVIDE IMMUNITY FOR PERSONS WHO ACT IN GOOD FAITH RELIANCE ON SUCH AFFIDAVIT; TO AMEND SECTION 93-13-1, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.

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

SECTION 1. (1) (a) A nonlegal custodian, who is not a foster parent caring for a child in the custody of the Department of Human Services, shall be authorized to give legal consent for a child in his custody to receive any medical or educational services for which parental consent is usually required by executing the affidavit described in subsection (2)(d) of this section. The affidavit shall not be valid for more than one (1) year after the date on which it is executed.

(b) The decision of a nonlegal custodian to consent to or to refuse medical or educational services for a child in his custody shall be superseded by any contravening decision of a parent or a person having legal custody of the child, provided the decision of the legal custodian does not jeopardize the life, health, safety or welfare of the child.

(2) (a) No person who acts in good faith reliance on a nonlegal custodian properly executed affidavit, having no actual knowledge of any facts contrary to those stated in the affidavit, shall be subject to civil liability or criminal prosecution, or to professional disciplinary procedure, for any action which would have been proper if the facts had been as he believed them to be. This paragraph shall apply even if medical or educational services are rendered to a child in contravention of the wishes of the parent or legal custodian of that child. However, the person rendering the services must not have actual knowledge of the wishes of the parent or legal custodian.

(b) A person who relies on a properly executed affidavit has no obligation to make further inquiry or investigation. Nothing herein shall relieve any person of responsibility for violations of other provisions of law, rules, or regulations.

(c) If the child ceases to live with the nonlegal custodian, the nonlegal custodian shall notify all parties to whom he has transmitted the affidavit or to whom he has caused the affidavit to be transmitted.

(d) A nonlegal custodian's affidavit shall be invalid unless it substantially contains, in not less than ten-point boldface type, or a reasonable equivalent thereof, the warning statement beginning with the word "warning" specified in this paragraph. The warning statement shall be enclosed in a box with three-point rule lines. The nonlegal custodian's affidavit shall be in substantially the following form:

NONLEGAL CUSTODIAN'S AFFIDAVIT

INSTRUCTIONS: Completion of items 1 through 4 and the signing of the affidavit are sufficient to authorize educational services and school-related medical services for the named child. Completion of items 5 through 8 is additionally required to authorize any other medical services. Please print clearly.

The child named below lives in my home and I am 18 years of age or older.

1. Name of child:

2. Child's date of birth:

3. My name (adult giving authorization):

4. My home address:

5. [ ] I am a nonlegal custodian.

6. Check one or both (for example, if one parent was advised and the other cannot be located):

[ ] I have advised the parent(s) or legal custodian(s) of the child of my intent to authorize the rendering of educational or medical services, and have received no objection.

[ ] I am unable to contact the parent(s) or legal custodian(s) of the child at this time, to notify them of my intended authorization.

7. Affiant's date of birth:

8. Affiant's Mississippi driver's license number or identification card number:

WARNING: Do not sign this form if any of the statements above are incorrect, or you will be committing a crime punishable by a fine, imprisonment, or both.

I declare under penalty of perjury under the laws of Mississippi that the foregoing is true and correct.

Signed: Date:

NOTICES:

1. This declaration does not affect the rights of the child's parent or legal guardian regarding the care, custody, and control of the child, and does not mean that the nonlegal custodian has legal custody of the child.

2. A person who relies on this affidavit has no obligation to make any further inquiry or investigation.

3. This affidavit is not valid for more than one year after the date on which it is executed.

ADDITIONAL INFORMATION:

TO NONLEGAL CUSTODIANS:

1. If the child stops living with you, you are required to notify anyone to whom you have given this affidavit as well as anyone of whom you have actual knowledge who received the

affidavit from a third party.

2. If you do not have the information in item 8 (Mississippi driver's license or identification card), you must provide another form of identification such as your social security card number.

TO SCHOOL OFFICIALS:

The school district may require additional reasonable evidence that the nonlegal custodian lives at the address provided in Item 4.

TO HEALTH CARE PROVIDERS AND HEALTH CARE SERVICE PLANS:

1. No person who acts in good faith reliance upon a nonlegal custodian's affidavit to render educational or medical services, without actual knowledge of facts contrary to those stated in the affidavit, is subject to criminal prosecution or civil liability to any person, or subject to any professional disciplinary action, for such reliance if the applicable portions of the form are completed.

2. This affidavit does not confer dependency for health care coverage purposes.

SECTION 2. Section 93-13-1, Mississippi Code of 1972, is amended as follows:

93-13-1. The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor. If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to its custody. But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appear that such person is unsuitable, and appoint a suitable person. A nonlegal custodian may exercise the authority provided in Section 1 of this act subject to the limitations therein and the limitations of this section and any other provision of law provided for legal custodians.

SECTION 3. This act shall take effect and be in force from and after July 1, 2012.