For various reasons, sometimes parents are unable to care for their children. For example, a child may be taking a trip out of state with a school or extracurricular program and an unrelated adult supervising the trip needs authority to make medical decisions if a problem arises. Other situations might be more long-term, such as a parent wanting someone reliable to care for her child for multiple months while she attempts to gain control over a mental or physical illness. In either example, the parent trusts the other adult to care for the child, but third parties need a structure that enables them to rely on the other adult’s authority.
The Maine Probate Code provides a framework for delegation of parental rights. Parents and guardians may execute a power of attorney that delegates “any of that parent’s or guardian’s powers regarding the care, custody or property of the minor child or ward, except the power to consent to marriage or adoption.” 18-A M.R.S. § 5‑104(1). The delegation may not last for longer than twelve months. Delegations by guardians must be filed with the relevant court to take effect. This structure ensures medical treatment is not delayed when children are away from parents and also allows parents to avoid the public process of a guardianship when attempting to remedy a personal issue.
This April, the Maine Legislature enacted one law that clarified this delegation process and another that emphasized its importance. First, L.D. 1065, An Act to Amend the Law Regarding Temporary Powers of Attorney over Minors and To Require Organizations to Screen Agents before Providing Care, modified the existing law. It emphasizes that parents and guardians who delegate their rights concerning their child or ward do not lose those rights; they have simply authorized another person to act as well. Importantly, the law now also specifically states that this delegation of rights, “without other evidence, does not constitute abandonment, abuse or neglect.” As difficult as temporarily giving another person care of one’s child can be, it may be best for a child if doing so allows the adult to ultimately become a better parent and the placement is safe and stable. The addition to the law empowers parents to do so knowing it will not necessarily affect their parental rights in the long term.
The new language of the law also serves as a reminder that these arrangements are meant to be temporary. It states that the delegation may not be executed with the intention of permanently waiving responsibilities and that the child or ward must be returned to the custody of the parent or guardian at the expiration or termination of the power of attorney unless otherwise directed by a court. Finally, for organizations attempting to assist parents with these powers of attorney as a way to avoid guardianships or the child protective system, the law provides guidance for how the organization should screen potential agents to serve under the powers of attorney.
The second new law, L.D. 1518, An Act to Ensure Child in the Care of Caretaker Relatives and Other Surrogates Can Access Health Care, addresses the situation where a parent has not prepared a power of attorney. It creates the category of “surrogates” who may consent to medical treatment on a minor’s behalf. A surrogate is an adult “with whom the minor resides and from whom the minor receives the ongoing care and support expected of a parent.” 22 M.R.S. § 1501(4). The surrogate need not be related to the minor and does not include someone serving as an agent under a power of attorney delegating parental rights. Health care providers are entitled to rely on the surrogate’s consent in good faith. 22 M.R.S. § 1504.
While this surrogate concept may be beneficial at times, it also runs the risk of a theoretically well-meaning adult contravening a parent’s wishes. A few safeguards were included to balance this risk. First, surrogates may not withhold or withdraw life-sustaining and medically necessary treatment. 22 M.R.S. § 1503-A(1). Next, unless parental notification is not required for the particular treatment, the surrogate must make a “reasonable good faith attempt” to notify the child’s parent of the proposed treatment and the parent’s right to consent to it before the treatment occurs and then notify the parent afterward about the care provided, though the methods for providing notice are fairly flexible. Id. § 1503‑A(1)‑(2). Also, acting as surrogate without meeting the definition or without giving the required notices to the child’s parent is a Class E crime. Id. § 1503‑A(3).
Though an adult might improperly claim he was a surrogate, it is also likely that a health care provider might refuse to honor the surrogate’s consent because the provider is not certain that the adult qualifies as a surrogate. If a parent needs to delegate parental rights, a power of attorney is the preferred option because it avoids these questions, provides control over who is acting on the child’s behalf, and may be used to grant authority beyond the realm of medical treatment.
Authorizing another person to act on behalf of your child or ward, even for a brief period, is a serious decision. We are available to help you weigh this decision and prepare a power of attorney that matches your circumstances.