40-6-502. Caretaker relative medical authorization affidavit -- use -- immunity -- format.

     40-6-502. Caretaker relative medical authorization affidavit -- use -- immunity -- format. (1) A caretaker relative of a child who has voluntarily been given custody of the child by a parent of the child has the same authority as a custodial parent of the child to consent to medical care for the child for which parental consent is usually required if:
     (a) in leaving the child with the caretaker relative, the parent expressed no definite time period in which the parent would return for the child;
     (b) the child is residing with the caretaker relative on a full-time basis;
     (c) the caretaker relative is unable to contact the parent following the voluntary leaving of the child with the relative or the parent refuses to regain custody of the child after a written request by the relative to do so;
     (d) no adequate provision, such as the appointment of a guardian ad litem or execution of a power of attorney, has otherwise been made for the medical care of the child; and
     (e) a caretaker relative medical authorization affidavit is completed in compliance with this section.
     (2) An affidavit is effective only if it is signed by the caretaker relative, under oath, before a notary public. A clear photographic copy of an affidavit completed in compliance with this section is sufficient in any instance in which an original is required by a health care provider.
     (3) Unless the rights of a parent have been judicially terminated or unless the ability to give legal consent for the child to receive medical care for which parental consent is usually required has been granted to the caretaker relative pursuant to 40-4-211 and 40-4-228, a decision by a parent of the child communicated to the health care provider regarding the health care of the child supersedes a conflicting decision by a caretaker relative made pursuant to an affidavit completed in compliance with this section. However, a decision by a parent does not supersede a decision by a caretaker relative made pursuant to an affidavit completed in compliance with this section if the decision by the parent endangers the life of the child. A health care provider may require reasonable proof of authenticity of a decision by a parent intended to supersede a decision by a caretaker relative.
     (4) (a) A public or private health care provider or a public or private school official who acts in good faith reliance on a caretaker relative medical authorization affidavit completed in compliance with this section and who has no actual knowledge of facts contrary to those indicated in the affidavit is not subject to civil liability or criminal prosecution or to a professional disciplinary procedure for an action that would have been proper if the facts had been as the health care provider believed them to be.
     (b) This subsection (4) applies even if medical care is provided to a child against the wishes of a parent of that child if the health care provider rendering the service does not have actual knowledge of the parent's wishes.
     (5) A health care provider who relies on an affidavit completed in compliance with this section has no obligation to make further inquiry or investigation.
     (6) An affidavit completed in compliance with this section is effective for the earlier of:
     (a) 6 months;
     (b) until it has been revoked by the caretaker relative; or
     (c) until the child no longer resides with the caretaker relative.
     (7) If the child ceases to live with the caretaker relative or the caretaker relative revokes the affidavit, the caretaker relative shall provide written notice of that fact to all health care providers to whom the caretaker relative has given the affidavit or to whom the caretaker relative has caused the affidavit to be given.
     (8) This section does not relieve a person from a violation of other law, and this section does not affect the rights of a child's parent except as provided in this section.
     (9) A caretaker relative medical authorization affidavit is invalid unless it is written in substantially the following form and contains the warning provided for in paragraph 5 of the format below:

CARETAKER RELATIVE'S MEDICAL AUTHORIZATION AFFIDAVIT Use of this affidavit is authorized by 40-6-502, MCA.

     1. INSTRUCTIONS: The completion and signing of the affidavit before a notary public are sufficient to authorize medical care for the named child. Please print clearly.
     The child named below lives in my home, and I am 18 years of age or older.
     a. Name of child:
     b. Child's date of birth:
     c. My name (caretaker relative):
     d. My home address:
     e. My relationship to the child (the caretaker relative must be an individual related by blood, marriage, or adoption by another individual to the child whose care is undertaken by the caretaker relative, but who is not a parent, foster parent, stepparent, or legal guardian of the child):
     2. I hereby certify that this affidavit is not being used for an unlawful purpose.
     3. My date and year of birth:
     4. Check the following if true (all must be checked for this affidavit to apply):
     [ ] A parent of the child identified in paragraph 1a of this affidavit has left the child with me and has expressed no definite time period when the parent will return for the child.
     [ ] The child is now residing with me on a full-time basis.
     [ ] I am unable to locate or contact the parent of the child at this time to notify that parent of my intended authorization, or the parent refuses to regain custody of the child even though I have asked in writing that the parent do so.
     [ ] No adequate provision, such as appointment of a guardian ad litem or execution of a power of attorney, has been made for medical care for the child.
     5. 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.
     6. I declare under penalty of false swearing under the laws of Montana that the foregoing is true and correct.
     Signed this ___ day of _______, 20__.
     _____________________________________
     (Signature of caretaker relative)
     _____________________________________
     (Signature, county, state, and seal of notary public)
     7. NOTICES:
     a. Completion of this affidavit 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 caretaker relative has legal custody of the child.
     b. A health care provider who relies on this affidavit has no obligation to make any further inquiry or investigation.
     c. This affidavit is not valid for more than 6 months after the date on which it is signed by the caretaker relative.
     8. ADDITIONAL INFORMATION:
     a. TO CARETAKER RELATIVES: If the child stops living with you, you shall notify anyone to whom you have given this affidavit, as well as anyone who has received the affidavit from someone else.
     b. TO PUBLIC AND PRIVATE HEALTH CARE PROVIDERS AND PUBLIC AND PRIVATE SCHOOL OFFICIALS: A public or private health care provider or a public or private school official who acts in good faith reliance upon a caretaker relative medical authorization affidavit to provide medical care, without actual knowledge of facts contrary to those indicated in the affidavit, is not subject to criminal prosecution or civil liability to any person, or subject to any professional disciplinary action, for reliance on the affidavit if the form is completed in compliance with 40-6-502, MCA.

History: En. Sec. 2, Ch. 393, L. 2007.