Bill H.4318

FILED ON: 2/2/2024

HOUSE . . . . . . . . . . . . . . . No. 4318

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

_______________

An Act relative to caregiver authorization affidavits.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 201F is hereby amended by striking out section 1 and inserting in place thereof the following section:-

Section 1. As used in this chapter the following words shall have the following meanings, unless the context clearly indicates otherwise:-

“Alternate caregiver” a caregiver who, if the first designated caregiver is unwilling or unable to serve, will carry out the responsibilities conferred in the caregiver authorization affidavit

“Authorizing party”, a parent, legal guardian or legal custodian who authorizes a caregiver or alternate caregiver to act under a caregiver authorization affidavit.

“Caregiver”, an adult who has been so designated by an authorizing party in a caregiver authorization affidavit pursuant to this chapter who will carry out the responsibilities conferred in the affidavit.

“Caregiver authorization affidavit”, an affidavit prepared pursuant to this chapter that authorizes a designated caregiver or alternate caregiver to act relative to the education, health care, recreation, enrichment and services needs of one or more minor children.

“Concurrent parental rights and responsibilities”, the authorizing party’s powers regarding care, custody and property of one or more minor children as provided by state or federal law or court order.

SECTION 2. Section 2 of said Chapter 201F, as appearing in the 2022 Official Edition , is hereby amended by striking out the first two paragraphs and inserting in the place thereof the following paragraphs:-

A parent, legal guardian or legal custodian of one of more minor children, by a caregiver authorization affidavit, may authorize a designated caregiver to exercise certain concurrent parental rights and responsibilities relative to any designated minor child's education, health care, recreational and enrichment activities as described in section 3. If a conflicting decision is made under these concurrent rights and responsibilities, the decision of the authorizing party or a legal guardian or legal custodian appointed subsequent to the execution of the affidavit shall supersede the decision of the caregiver.

The caregiver authorization affidavit shall only authorize those rights and responsibilities that the authorizing party possesses and shall not divest the authorizing party of their rights or responsibilities. Nothing in this chapter shall affect the rights of any other parent, legal guardian or legal custodian of a designated minor.

SECTION 3. Said chapter 201F is hereby further amended by striking out section 3 and inserting in the place thereof the following section:-

Section 3. (a) A caregiver shall reside with the minor child or children during the time the caregiver is authorized to act relative to the caregiver authorization affidavit unless the authorizing party gives written permission that the minor child or children may reside at a licensed camp or educational institution..

(b) Under a caregiver authorization affidavit, a caregiver may:

(1) give consent to medical, surgical, dental, developmental, mental health or other treatment for the minor under the supervision of or upon the advice of a health care professional licensed to practice in the commonwealth;

(2) exercise parental rights to obtain records and other information with regard to health care services and insurance provided to the minor;

(3) make educational decisions , on behalf of the minor and in all other ways stand in for the authorizing party with respect to federal, state and district educational policy, including, but not limited to, accessing the minor's educational records, representing the minor in enrollment, disciplinary, curricular, special education or other educational matters, signing permission slips for school activities and any other decision that facilitates the minor's educational experience;

(4) make decisions on behalf of the minor regarding recreational and enrichment activities including, but not limited to, enrollment, signing permission slips for daycare, sports, clubs, lessons, camps, and any other decision relating to the minor’s recreational and enrichment activities.

(5) apply for health insurance and dental insurance coverage for the minor, services and support for disabilities, and any other public or private services to address the education or health needs of the minor.

SECTION 4. Said chapter 201F is hereby further amended by striking out section 5 and inserting in the place thereof the following section:-

Section 5. The caregiver authorization affidavit shall include the following information:

(1) the name, address and telephone number of the authorizing party and any other parent, legal guardian or legal custodian of the minor child or children;

(2) the name, address and telephone number of the caregiver;

(3) the name, address and telephone number of the alternate caregiver, if any;

(4) the name and date of birth of each minor child;

(5) the relationship of the caregiver(s) to each minor child;

(6) a statement by the authorizing party that (i) there is no court order or pending suit which would prohibit the authorizing party from exercising or conferring the rights and responsibilities sought to be conferred upon the caregiver or alternate; and (ii) if there is a pending action concerning the custody, placement, access or visitation rights to any of the minor children, the relevant court has provided written approval for the execution of the authorization agreement;

(7) a statement of the authority being conferred, including any limitations or prohibitions;

(8) a statement that the affidavit is not for the purpose of circumventing any state or federal law, for the purpose of attendance at a particular school, or to re-confer rights to a caregiver from whom those rights have been removed by a court of law; and

(9) the date, time, event or circumstance on which the authority of the appointed caregiver commences and, if applicable, when it ends.

The affidavit shall be signed under the pains and penalties of perjury by the authorizing party in the presence of 2 adult witnesses, neither of whom may be the caregiver nor alternate caregiver, and the affidavit shall be notarized. The affidavit also shall be signed by the caregiver, and by the alternate caregiver, if any, who shall attest to being an adult with whom the minor child or children resides or will reside unless the authorizing party states that any of the minor children shall reside at a licensed camp or educational institution. Any other person with legal custody over any of the minor children including but not limited to a parent, legal guardian or legal custodian shall be given timely legal notice of this affidavit including a copy of the affidavit in writing. The caregiver authorization affidavit may be valid for up to 2 years from the date that it becomes effective and may be reauthorized. The authorizing party may reauthorize, amend or revoke the caregiver authorization affidavit by notifying the caregiver and any other parent, legal guardian or legal custodian of the child or children in writing. The authorizing party shall provide the amended affidavit or revocation to all parties to whom they have provided the original affidavit. The caregiver shall provide the amended affidavit or revocation to all parties to whom they have provided the original affidavit prior to further exercising any rights or responsibilities under the affidavit.

SECTION 5: Said chapter 201F is hereby further amended by striking out section 6 and inserting in the place thereof the following section:-

Section 6. The caregiver authorization affidavit shall be substantially in the following form, except that the use of alternative language consistent with the statute shall not be precluded:

Caregiver Authorization Affidavit

I. What this form enables: A parent, legal guardian or legal custodian of one or more minor children, by this affidavit, may authorize a designated caregiver, who is an adult with whom the minor child or children resides or will reside unless the authorizing party permits the minor child or children to reside at a licensed camp or educational institution, to exercise certain concurrent parental rights and responsibilities relative to each designated minor child's education, health care, services, recreational and enrichment activities. If a conflicting decision is made under these concurrent rights and responsibilities, the decision of the authorizing party or a legal guardian or legal custodian appointed subsequent to the execution of the affidavit shall supersede the decision of the caregiver.

The caregiver authorization affidavit shall only authorize those rights and responsibilities that the authorizing party possesses and shall not divest the authorizing party of their rights or responsibilities. The caregiver authorization affidavit shall not affect the rights of any other parent, legal guardian or legal custodian of each designated minor.

Under a caregiver authorization affidavit, a caregiver may:

(1) consent to medical, surgical, dental, developmental, mental health or other treatment for the minor under the supervision or upon the advice of a health care professional licensed to practice in the commonwealth;

(2) exercise parental rights to obtain records and other information with regard to health care services and insurance provided to the minor;

(3) make educational decisions, on behalf of the minor and in all other ways stand in for the authorizing party with respect to federal, state and district educational policy, including, but not limited to, accessing the minor's educational records, representing the minor in enrollment, disciplinary, curricular, special education or other educational matters, signing permission slips for school activities and any other decision that facilitates the minor's educational experience;

(4) make decisions on behalf of the minor regarding recreational and enrichment activities including, but not limited to, enrollment and signing permission slips for daycare, sports, clubs, lessons, camps and any other decision relating to the minor’s recreational and enrichment activities; and

(5) apply for health insurance and dental insurance coverage for the minor, for services and support for disabilities and for any other public or private services to address the education or health needs of the minor.

II. Steps to authorize caregiver rights and responsibilities:

1. AUTHORIZING PARTY

I, [name of authorizing party], residing at [address of authorizing party] am the parent/legal guardian/legal custodian of the minor child or children listed below. Other parents, legal guardians, and legal custodians of any of the designated children include [name, address, telephone number]. Any such parents, legal guardians, and legal parents will be given legal notice and a copy of this affidavit.

I, [name of parent or legal guardian or legal custodian], do hereby authorize [name of caregiver], residing at [address of caregiver], to exercise concurrently the rights and responsibilities, except those limited or prohibited below, that I possess relative to the education, health care, services, recreational and enrichment activities of the minor child(ren) listed:

Name and Date of Birth of Each Minor Child

___ ___

The caregiver may NOT:

(Please list specifically any education, health care, recreational, or enrichment rights and responsibilities that you do NOT wish to confer upon the caregiver or wish to limit.)

In the event the above-named caregiver is unavailable or unwilling to serve as caregiver, I do hereby authorize [name of alternate caregiver] residing at [address of alternate caregiver], to exercise the rights referenced above. (This section is optional)

There are no court orders in effect that would prohibit me from exercising or conferring the rights and responsibilities that I wish to confer upon the caregiver. There is no pending action concerning the custody, placement, access or visitation with any of the minor children or, if there is, the relevant court has provided written approval for the execution of the authorization agreement and that order is attached.I am not using this affidavit to circumvent any state or federal law, for the purposes of attendance at a particular school, or to re-confer rights to a caregiver from whom those rights have been removed by a court of law and I understand that nothing in this affidavit affects the rights of any other parent, legal guardian or legal custodian of a designated minor.

I confer these rights and responsibilities freely and knowingly in order to provide for the child(ren) named herein, and not as a result of pressure, threats or payments by any person or agency.

I understand that, if the affidavit is amended or revoked, I must provide the amended affidavit or revocation to all parties to whom I have provided this affidavit.

The authority of the caregiver shall commence upon (choose one):

a date or time certain __________; or

upon the occurrence of a certain event __________; or

the date of the incapacity of the authorizing party to make or carry out day-to-day decisions concerning the minor, as established by written certification of a licensed physician. This document shall remain in effect until (choose one):

a date certain (up to two years hence) ________; or

upon the occurrence of a certain event __________; or

2 years from the date of the incapacity of the authorizing party to make or carry out day-to-day decisions concerning the minor, as established by written certification of a licensed physician. Unless or until I, as authorizing party, notify the caregiver (and alternate caregiver, if any), in writing that I have amended or revoked it, or until such time as the minor child or children reach the age of majority.

I hereby affirm that the above statements are true, under pains and penalties of perjury.

Signature:

Printed name:

Telephone number:

Permanent Address:

2. WITNESSES TO AUTHORIZING PARTY SIGNATURE

(To be signed by persons over the age of 18 who are not the designated caregiver or alternate caregiver.)

Witness No. 1 signature:

Witness No. 1 printed name and address:

Witness No. 2 signature:

Witness No. 2 printed name and address:

3. NOTARIZATION OF AUTHORIZING PARTY SIGNATURE

On this [date before me, the undersigned notary public, personally appeared [name of authorizing party, and alternate caregiver, if any], proved to me through satisfactory evidence of identification, which was [driver's license, etc.], to be the person(s) signing the preceding document, and swore under the pains and penalties of perjury that the foregoing statements are truthful and accurate to the best of their knowledge and belief.

Signature and seal of notary:

Printed name of notary:

My commission expires:

4. CAREGIVER ACKNOWLEDGEMENT

I, [name of caregiver], am at least 18 years of age and the named minor child or children currently reside or will reside with me at [address of caregiver] unless the authorizing party permits the minor child or children to reside at a licensed camp or educational institution as stated in this affidavit. I am [relationship to the minor child or children].

I understand that I may, without obtaining further consent from a parent, legal custodian or legal guardian of the minor child or children, exercise concurrent rights and responsibilities relative to the education, health care, services, recreation and enrichment of the minor child or children, except those rights and responsibilities prohibited or limited above.

I understand that I may not knowingly make a decision which conflicts with the decision of the minor child or children’s parent, legal guardian or legal custodian.

I understand that, if the affidavit is amended or revoked, I must provide the amended affidavit or revocation to all parties to whom I have provided this affidavit prior to further exercising any rights or responsibilities under the affidavit.

I understand that, if I become unable to carry out the responsibilities conferred by this affidavit, I will do so by immediately notifying the authorizing party, the alternate caregiver and any other parent, legal custodian or legal guardian of the minor child or children in writing.

I hereby affirm that the above statements are true, under pains and penalties of perjury.

Signature of caregiver:

Printed name:

Telephone Number:

Permanent address:

5. ALTERNATE CAREGIVER ACKNOWLEDGEMENT (This section is optional)

I, [name of alternate caregiver], am at least 18 years of age and the child or children currently reside or will reside with me at [address of caregiver] unless the authorizing party permits the minor child or children to reside at a licensed camp or educational institution as stated in this affidavit. I am [relationship to the minor child or children].

I understand that I may, in the case of unwillingness, inability or incapacity of the first designated caregiver to carry out the responsibilities conferred herein, and without obtaining further consent from a parent, legal custodian or legal guardian of the minor child or children, exercise concurrent rights and responsibilities relative to the education, health care, services, recreation and enrichment of the minor child or children, except those rights and responsibilities prohibited or limited above.

I understand that I may not knowingly make a decision that conflicts with the decision of the minor child or children's parent, legal guardian or legal custodian.

I hereby affirm that the above statements are true, under pains and penalties of perjury.

Signature of caregiver:

Printed name:

Telephone Number:

Permanent Address:

6. ATTESTATION OF HEALTH CARE PROVIDER AS TO AUTHORIZING PARTY’S UNAVAILABILITY (This section is optional)

I, [name of caregiver], attest that the authorizing party is unavailable due to _______________________________________________________________________.

I hereby affirm that the above statements are true, under pains and penalties of perjury.

Signature of caregiver:

Printed name:

Telephone Number:

7. ATTESTATION OF ALTERNATE CAREGIVER AS TO DESIGNATED CAREGIVER’S UNAVAILABILITY (This section is optional)

I, [name of alternate caregiver], attest that the designated caregiver is unwilling or unavailable due to ________________________________________________________.

I hereby affirm that the above statements are true, under pains and penalties of perjury.

Signature of alternate caregiver:

Printed name:

Telephone Number:

Permanent Address:

III. Explanations: This caregiver authorization affidavit is pursuant to chapter 201F of the General Laws. A dispute arising hereunder shall be the exclusive jurisdiction of the probate courts pursuant to section 3 of chapter 215 of the General Laws.

A person who relies on a caregiver authorization affidavit that is consistent with the requirements of said chapter 201F has no obligation to make any further inquiry or investigation and shall not incur any criminal or civil liability or be subject to professional discipline for doing so, unless he knows facts contrary to the affidavit or knows that an authorizing party has made a decision to supersede the caregiver's decision. Reliance on the affidavit shall not relieve a person from liability arising from other provisions of the law.