On December 20, 2012, House Bill (HB) 279 was signed by Governor Kasich. This bill made several significant changes to the laws regarding the grandparent power of attorney and caretaker authorization affidavit. The new language will become effective on March 20, 2013.
Power of Attorney. Before HB 279, a child's parent, guardian, or custodian could create a power of attorney that granted to a grandparent with who the child is residing any of the parent's, guardian's or custodian's rights and responsibilities regarding the care, physical custody, and control of the child. The rights included the ability to enroll the child in school, to obtain educational and behavioral information about the child, to consent to all school-related matters regarding the child, and to consent to medical, psychological or dental treatment for the child. It did not affect the rights of the child's parent, guardian, or custodian in any future proceeding concerning the allocation of parental rights and responsibilities for the care of the child and does not grant legal custody to the grandparent. Under existing law, the power of attorney terminated if: 1) one year elapsed following the date it was notarized, 2) it was revoked in writing by the person who created it, 3) the child ceased to reside with the grandparent, 4) it was terminated by court order, or 5) the child or the grandparent died.
Caretaker Authorization Affidavit. Before HB 279, if a child was living with a grandparent who had made reasonable attempts to locate and contact both of the child's parents or the child's guardian or custodian but has been unable to do so, the grandparent was permitted to execute a caretaker authorization affidavit. The affidavit gave the grandparents the authority to exercise care, physical custody, and control of the child, including the authority to enroll the child in school, to discuss with the school district the child's educational progress, to consent to all school-related matters regarding the child, and to consent to medical, psychological, or dental treatment for the child. Under existing law, the caretaker authorization affidavit terminated whenever one of the following occurred: 1) one year elapsed following the date the affidavit was notarized, 2) the child ceased to reside with the grandparent, 3) the parent, guardian, or custodian of the child acted, in accordance with the law to negate, reverse, or otherwise disapprove an action or decision of the grandparent, or 4) a court terminated the affidavit.
HB 279 changes. HB 279 eliminated the automatic termination of the power of attorney and caretaker authorization affidavit that previously occurred after a year. The elimination of automatic termination makes unnecessary the statutory provisions relating to the creation of a second or subsequent power of attorney or caretaker authorization affidavit and the bill repealed those provisions.
The bill also requires a person who revokes a power of attorney to give written notice of the revocation to the grandparent and to the juvenile court with which the power of attorney was filed. Under the bill, if a power of attorney or caretaker authorization affidavit is revoked, the grandparent may file a complaint in the juvenile court seeking a determination of custody if the grandparent believes that the revocation or removal from the grandparent's home is not in the child's best interest. The complaint must be filed within 14 days from the date of revocation or removal. Pending a hearing or decision, the court may make any temporary disposition of any child that it considers necessary to protect the child's best interest.
The bill also modified termination of a caretaker authorization affidavit by written notice of negation, reversal or disapproval. Under existing law, a parent, guardian or custodian may negate, reverse, or disapprove an action taken or decision made pursuant to a caretaker authorization affidavit by delivering the written notice to the grandparent-caretaker and to the person responding to the grandparent's action or decision in reliance on the affidavit. Delivery of the notice terminated the affidavit. HB 279 specifies that, in the case where the parent, guardian or custodian negates, reverses, or disapproves of an action, termination now occurs as of the date the caretaker voluntarily returns the child to the physical custody of the parent, guardian, or custodian or upon the expiration of 14 days from the negation, reversal, or disapproval if the caretaker has not filed a complaint for custody in the interim. Delivery of the written notice is still required, but is not enough to terminate the affidavit.
The bill amends the statutory power of attorney and caretaker authorization affidavit forms to conform to these changes. OSBA has updated its Grandparents Caretaker Law fact sheet to reflect these updates. A copy of the updated fact sheet is available here.
If you have any additional questions or concerns, please contact OSBA's division of legal services at (614) 540-4000.