MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary, Division A
By: Senator(s) Wiggins
AN ACT TO AMEND SECTION 93-31-3, MISSISSIPPI CODE OF 1972, TO AMEND THE SUPPORTING AND STRENGTHENING FAMILIES ACT TO REQUIRE FILING IN YOUTH COURT OF THE TEMPORARY POWER OF ATTORNEY; TO PROHIBIT CERTAIN PERSONS FROM BEING DESIGNATED ATTORNEY-IN-FACT BASED ON CRIMINAL HISTORY; TO PROVIDE THAT NO FILING FEE, ATTORNEY OR COURT REVIEW IS REQUIRED; TO REQUIRE SCANNING INTO MYCIDS; TO AMEND SECTION 93-31-5, MISSISSIPPI CODE OF 1972, TO MAKE REVISIONS TO THE STATUTORY FORM; TO CREATE A FORM FOR REVOCATION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-31-3, Mississippi Code of 1972, is amended as follows:
93-31-3. (1) (a) A parent or legal custodian of a child, by means of a properly executed power of attorney as provided in Section 93-31-5, may delegate to another willing person or persons as attorney-in-fact any of the powers regarding the care and custody of the child other than the following:
(i) The power to consent to marriage or adoption of the child;
(ii) The
performance or inducement of an abortion on or for the child; * * *
(iii) The
termination of parental rights to the child * * *; or
(iv) To avoid a Department of Child Protection Services investigation.
(b) A delegation of powers under this section does not:
(i) Change or modify any parental or legal rights, obligations, or authority established by an existing court order;
(ii) Deprive any custodial or noncustodial parent or legal guardian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child; or
(iii) Affect a court's ability to determine the best interests of a child, including placing custody with the Department of Child Protection Services.
(c) * * * Any
living parent must execute the power of attorney.
(d) A power of
attorney under this chapter must be facilitated by either a child welfare
agency that is licensed to place children for adoption and that is operating
under the Safe Families for Children model or another charitable organization
that is operating under the Safe Families for Children model. A full criminal
history and child abuse and neglect background check must be conducted on any
person who is * * *:
(i) Designated or proposed to be designated as the attorney-in-fact; or
(ii) Is a person
over the age of * * * eighteen (18) who resides in the home of the designated
attorney-in-fact.
(e) A person is ineligible to be appointed as attorney-in-fact if:
(i) The criminal history of the person or of any person over the age of eighteen (18) residing in the home of the proposed attorney-in-fact shows conviction of a felony; or
(ii) The person or any person over the age of eighteen (18) residing in the home of the proposed attorney-in-fact has a substantiated history of neglect or abuse with the Department of Child Protection Services or any other state's child protective services.
(2) A power of attorney executed under this chapter shall not be used for the sole purposes of enrolling a child in a school to participate in the academic or interscholastic athletic programs provided by that school or for any other unlawful purposes, except as may be permitted by the federal Every Student Succeeds Act (Public Law 114-95).
(3) The parent or legal custodian of the child has the authority to revoke or withdraw the power of attorney authorized by this section at any time. Upon the termination, expiration, or revocation of the power of attorney, the child must be returned to the custody of the parent or legal custodian as soon as reasonably possible. Written notice of revocation, termination or withdrawal shall be furnished by the designated attorney-in-fact to the court where the original form was filed, the Department of Child Protection Services and the child's current school district within forty-eight (48) hours of revocation, termination or withdrawal.
(4) Until the authority expires or is revoked or withdrawn by the parent or legal custodian, the attorney-in-fact shall exercise parental or legal authority on a continuous basis without compensation for the duration of the power of attorney. The parent or parents of the child remain responsible for the reasonable and necessary medical and educational expenses of the child.
(5) The execution of a power of attorney by a parent or legal custodian does not, in the absence of other evidence, constitute abandonment, desertion, abuse, neglect, or any evidence of unfitness as a parent unless the parent or legal custodian fails to take custody of the child or execute a new power of attorney after the one-year time limit, or after a longer time period as allowed for a serving parent, has elapsed. Nothing in this subsection prevents the Department of Human Services or law enforcement from investigating allegations of abuse, abandonment, desertion, neglect or other mistreatment of a child.
(6) When the custody of a child is transferred by a power of attorney under this chapter, the child is not considered to have been placed in foster care and the attorney-in-fact will not be subject to any of the requirements or licensing regulations for foster care or other regulations relating to out-of-home care for children and will not be subject to any statutes or regulations dealing with the licensing or regulation of foster care homes.
(7) (a) "Serving parent" means a parent who is a member of the Armed Forces of the United States, including any reserve component thereof, or the National Oceanic and Atmospheric Administration Commissioned Officer Corps or the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Armed Forces of the United States, or who is required to enter or serve in the active military service of the United States under a call or order of the President of the United States or to serve on state active duty.
(b) A serving parent may delegate the powers designated in subsection (1) of this section for longer than one (1) year if on active-duty service or if scheduled to be on active-duty service. The term of delegation, however, may not exceed the term of active-duty service plus thirty (30) days.
(8) The statutory form for power of attorney to delegate parental or legal custodian powers must by filed by the designated attorney-in-fact with the youth court of the home county of the minor. However:
(a) (i) No filing fee shall be required of the designated attorney-in-fact;
(ii) The court may not require an attorney to represent the minor or the attorney-in-fact and is not required to issue any court order confirming the power of attorney; and
(b) The form shall be scanned by the clerk of court into the MYCIDS program for tracking by the Administrative Office of Courts.
(9) The written notice of revocation, termination or withdrawal shall be filed by the designated attorney-in-fact with the clerk of court of the original filing. A copy shall be furnished by the clerk of court to the school district and local Department of Child Protection Services where the minor was residing with the designated attorney-in-fact.
SECTION 2. Section 93-31-5, Mississippi Code of 1972, is amended as follows:
93-31-5. (1) The following statutory form of power of attorney to delegate parental or legal authority as authorized by
Section 93-31-3 is legally sufficient:
Statutory Form for Power of Attorney to
Delegate Parental or Legal Custodian Powers
1. "I certify that I am the parent or legal custodian of:
__________________________ _______________ ___________________
(Full name of minor child) (Date of birth) (Social Security #)
__________________________ _______________ ___________________
(Full name of minor child) (Date of birth) (Social Security #)
__________________________ _______________ ___________________
(Full name of minor child) (Date of birth) (Social Security #)
who is/are minor children.
2. I designate ______________________________
(Full name of attorney-in-fact)
__________________________________________________________________
(Street address, city, state and zip code of attorney-in-fact)
__________________________________________________________________
(Home phone, work phone and cell phone of attorney-in-fact)
as the attorney-in-fact of each minor child named above.
3. [Complete either Section 3(a) or 3(b)].
(a) I delegate to the
attorney-in-fact all of my power * * *, authority and responsibility
regarding the care, custody and property of each minor child named above,
including, but not limited to, the right to enroll the child in school, inspect
and obtain copies of education records and other records concerning the child,
the right to attend school activities and other functions concerning the child,
and the right to give or withhold any consent or waiver with respect to school
activities, medical and dental treatment, and any other activity, function or
treatment that may concern the child. I agree to be responsible for the
cost of all reasonable and necessary medical and educational needs of my
child/children listed. This delegation shall not include the power or
authority to consent to marriage or adoption of the child, the performance or
inducement of an abortion on or for the child, or the termination of parental
rights to the child.
OR
(b) I delegate to the attorney-in-fact the following specific powers and responsibilities (write in):
__________________________________________________________________
[If Section 3(b) is completed, Section 3(a) does not apply.]
This delegation shall not include the power or authority to consent to: marriage or adoption of the child, performing or inducing an abortion on or for the child, or the termination of parental rights to the child.
[Complete either 4(a) or 4(b)]
4. (a) This power of attorney is effective for a period not to exceed one (1) year, beginning, _____________, 20___, and ending _____________, 20____. I reserve the right to revoke this authority at any time.
OR
[Complete either 4(a) or 4(b)]
(b) I am a serving parent as defined in Section 93-31-3, Mississippi Code of 1972. My active-duty service is scheduled to begin on _____________, 20___, and is estimated to end on ______________, 20____. I reserve the right to revoke this authority at any time. I acknowledge that in no event may this delegation of power last more than one (1) year or the term of my active duty plus thirty (30) days, whichever is longer.
By: _________________________________
(Parent/Legal Custodian signature)
5. I hereby accept my designation as attorney-in-fact for the minor child/children specified in this power of attorney.
_________________________________
(Attorney-in-fact signature)
6. I, facilitator, hereby acknowledge that I have performed and received the full criminal history and child abuse history of the designated attorney-in-fact and any member of the designated attorney's household who is over the age of eighteen (18), and find that the statutory requirements have been met by the designated attorney-in-fact and members of the household.
_____________________________________________
Facilitator
__________________________________________________________________
Print name, organization and telephone number
State of ________________________
County of _______________________
ACKNOWLEDGEMENT
Before me, the undersigned, a Notary Public, in and for said county and state on this ____ day of _____________, 20____, personally appeared _______________________(Name of Facilitator, known to me to be the person who executed this instrument and who acknowledged to me that execution of the same as his or her free and voluntary act and deed for the uses and purposes set forth in the instrument.
Witness my hand and official seal the day and year above written.
_______________________________
(Signature of notarial officer)
(Seal, if any)
_________________________
(Title and Rank)
My commission expires: ___________
State of _________________________
County of ________________________
ACKNOWLEDGEMENT
Before me, the undersigned, a Notary Public, in and for said county and state on this ____ day of _____________, 20____, personally appeared _______________________(Name of Parent/Legal Custodian) and _______________________(Name of Attorney-in-fact), known to me to be the persons who executed this instrument and who acknowledged to me that each executed the same as his or her free and voluntary act and deed for the uses and purposes set forth in the instrument.
Witness my hand and official seal the day and year above written.
_______________________________
(Signature of notarial officer)
(Seal, if any)
_________________________
(Title and Rank)
My commission expires:________________"
(2) A power of attorney that substantially conforms to the form set forth in this section is legally sufficient if the form is properly completed and acknowledged.
SECTION 3. This act shall take effect and be in force from and after July 1, 2017.