Caregiver's Authorization Affadavit

From Mark J. Welch's Legal Advisory newsletter, Winter 1995

Over the past few years, I have represented a number of grandparents and others in guardianship proceedings. Usually, the adult parents of the grandchildren have severe personal problems and cannot care for their children. A family member steps in to care for the children until a parent is able to do so.

Legal guardianship is not always necessary in these situations, if both parents agree that the child should live with the grandparent(s). For example, many public benefits are paid to the caregiver without need for a formal guardianship.

However, some doctors and schools have refused to recognize the authority of a caregiver who has not obtained formal appointment as a child's legal guardian. In these situations, formal guardianship simply wastes the limited resources of both the family and the courts, especially when the caregiver only fills in temporarily (for example, until the end of a school year, or while a military parent is overseas).

Recognizing this, the state legislature recently enacted new state laws (Family Code section 6550-6552 and Education Code section 48204(d)), which allow schools and medical providers to accept a Caregiver's Authorization Affadavit, without need for formal court-ordered guardianship. A school can rely on an affadavit completed by any adult caregiver, while a medical provider can rely only on affadavits from "qualified relatives" to authorize medical care.

The affadavit must be in the form specified in Family Code section 6552.

A caregiver's affadavit should eliminate the need for many temporary guardianships. However, formal legal guardianship is still appropriate in many situations, because it clearly identifies the person responsible for the child. In addition, a formal guardianship may be necessary to establish visitation rights and responsibilities, especially if one of the parents is irresponsible or incooperative.

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