INTRODUCTION

Caregivers and children in grandfamilies face physical and mental health challenges to a greater degree than the general population.[1]  Compounding these challenges are barriers limiting access to health care. 

 

Caregivers’ Health

Caregivers are frequently stressed because they are caring for children at a time in their lives they did not expect to be and they are often socially isolated from their peers.  They may feel a sense of shame and guilt about their own adult children who are unable to parent.   Grandparent caregivers have been found to frequently suffer health problems like depression, diabetes, hypertension, insomnia, and gastric distress.[2]  Furthermore, they are often unable to attend to their own medical needs due to a lack of daycare, respite care or adequate health insurance.
 

Children’s Health

Unlike the several studies concerning relative caregivers, there have been relatively few about the overall well being of children in relative care.  The existing findings show that these children exhibit a variety of physical, behavioral, and emotional problems to a greater degree than the general population of children, often due to the difficult situations that caused them to be placed in a grandparent’s care.  They have frequently been exposed to drugs or alcohol in utero and many of the children have special needs.[3] 

 

Access Issues

Approximately 128,000 children live with relatives in foster care and for these families, access to services, such as health care, can be easier than for the 2.6 million children with grandparents and other relatives not in the formal system.[4]  The state generally has legal custody of the children in foster care, so caseworkers and judges help with obtaining necessary health insurance and physical and mental health services.  In order to support the caregivers outside the system and their tremendous contributions towards keeping families together, access to services, such as health care, needs to be improved dramatically.

 

One of the reasons access issues are prevalent outside of foster care is because many of these children do not have a legal relationship, like legal custody or guardianship, with their caregivers. They lack such a relationship for many reasons.  Often their caregivers may have difficulty finding an affordable lawyer or they may not want to go through the expense, delay, and trauma of suing the birth parents for such a relationship. See the care and custody analysis on this website for more information about legal relationships.

 

Without a legal relationship, caregivers often cannot consent to medical and mental health treatment. Because of malpractice, liability, and confidentiality issues, health care providers may refuse to treat a child without the consent of a parent, legal custodian or guardian even when the child has insurance to cover the cost of the health care. 

 

State Responses

Some states are effectively responding to the access problems by enacting consent or power of attorney laws, which allow relative caregivers who do not have a legal relationship to the children in their care to access health care on behalf of the children without going to court: 

  • Medical consent laws generally allow a caregiver to complete an affidavit under penalty of perjury that they are the primary caregiver of the child and are authorized by the parent to consent to treatment.
  • Power of attorney laws specific for this purpose allow parents to complete a form or handwritten document that states what type of authority they are giving the caregiver. 

Both these types of laws typically shield the health care providers from liability due to their reliance on the documents. 

 

SUMMARY AND COMPARISON OF EXISTING STATE LAWS
 

 

Medical Consent Laws

About half the states have some form of medical consent law:  Arkansas, California (includes consent for mental health treatment), Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, KentuckyLouisiana, Maryland, Mississippi, Missouri, Montana, New Mexico, New York, North Dakota, Ohio (includes consent for psychological treatment), OregonSouth Carolina, South Dakota, Texas (includes consent for psychological treatment), Utah, Virginia, Washington. and West Virginia (includes consent for mental health care).  

 

These laws differ in various ways:
 

  • whether the caregiver can complete the form without the parent’s signature 
  • whether oral consent is sufficient
  • what types of treatment are covered  

California has had a medical consent law since 1994 and the parents’ signatures are not required if they cannot be found. [5]  This is an important feature for many grandfamilies.

 

A few of the consent laws do not require an affidavit or other writing.  For example, in 2005, Washington State passed a law that allows for consent to be given orally: a "competent adult representing himself or herself to be responsible for the health care" of a child can provide informed consent for the health care of that child. [6] This law provides immunity to health care providers and facilities for relying on such a representation, provided they do not have actual knowledge that it is false.  The health care provider or facility may, but is not required to, ask for documents proving the person's claim of responsibility.

 

Some laws only include immunizations or physical health care, whereas others, like the laws in California, Ohio, Texas, and Washington include mental health care. The inclusion of consent for this type of care is important and is a hurdle that many caregivers have faced.  Anecdotally, the omission of mental health seems to be nothing more than an oversight and some legislators have expressed interest in amending their laws to include that coverage. 

 

Another unintentional omission may be developmental screenings, which only Delaware's law appears to include.  Since many of the children in these families have special needs due to the circumstances leading to the forming of their grandfamily, screenings and treatment for developmental delays can be particularly important.
 

 

Power of Attorney Laws

The majority of states and the District of Columbia have explicitly codified power of attorney laws so parents can bestow relatives with the power of attorney for the care of their children: Alabama, Alaska, Arizona, Arkansas, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Utah, and Washington.
 

These states typically allow the power of attorney:

  • to be designated for six months to a year, so it may not be the best option for long term caregivers
  • to confer all powers over the care of a child, with the notable exceptions of the powers to consent to marriage or adoption   

Once the designation is complete, caregivers should be able to consent to health care treatment for a child.

 

Caveats for Both Types of Laws

It is important to note that medical consent documents and power of attorneys can be easily revoked by the parents.  Furthermore, institutions, such as clinics and hospitals, may not accept them despite a law stating they should.
 

 

LEGISLATIVE TRENDS

This is yet another area of the law where there has been a tremendous legislative activity in the last few years.  California appears to have started the educational/medical consent law trend in 1994.  Since that time, many states have joined it. 

States that are recently enacting laws seem to be using past laws as examples and learning from their mistakes.  For example, Ohio’s consent law, effective in 2004, covers consent for psychological treatment and does not require caregivers to have contacted parents in certain situations.  The law also includes the form for the affidavit that the caregiver must complete; its inclusion helps enormously with implementation issues.  Like California’s law, the form includes a warning:
 

WARNING: DO NOT EXECUTE THIS POWER OF ATTORNEY IF ANY STATEMENT MADE IN THIS INSTRUMENT IS UNTRUE. FALSIFICATION IS A CRIME UNDER SECTION 2921.13 OF THE REVISED CODE, PUNISHABLE BY THE SANCTIONS UNDER CHAPTER 2929. OF THE REVISED CODE, INCLUDING A TERM OF IMPRISONMENT OF UP TO 6 MONTHS, A FINE OF UP TO $1,000, OR BOTH.[7]
 

Finally, please note that the summaries of the laws and legislation in this analysis are based on the research conducted for this website and available for all users in the state law and legislation database.  That database, as well as the other information on this website, is an ongoing project.  If we have omitted any relevant information from this analysis or if you have any other comments or suggestions, please contact its author:  Ana Beltran, Special Advisor, Generations United, at abeltran@gu.org.    

 

 

[1] Minkler, M. (1999).  Intergenerational households headed by grandparents: contexts, realities, and implications for policy, Journal of Aging Studies 13, 199-218; Altshuler, S.J. (1998).  Child well-being in kinship foster care: similar to, or different from, non-related foster care, Children and Youth Services Review 20, 369-8; and Pruchno, R. (1999).  Raising grandchildren:  The experiences of black and white grandmothers, The Gerontologist 39, 209-31.

[2] Minkler, M. (1999).  Intergenerational households headed by grandparents: contexts, realities, and implications for policy, Journal of Aging Studies 13, 199-218.

[3] Altshuler, S.J. (1998).  Child well-being in kinship foster care: similar to, or different

from, non-related foster care, Children and Youth Services Review 20, 369-88, and Pruchno, R. (1999).  Raising grandchildren:  The experiences of black and white grandmothers, The Gerontologist 39, 209-31.

[4] U.S. Department of Health and Human Services, Adoption and Foster Care Analysis and Reporting System (AFCARS). The AFCARS Report, Preliminary FY 2015 Estimates as of June 2016.  Retrieved from https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport23.pdf​ ; Kids Count, Annie E. Casey Foundation.  Retrieved from http://datacenter.kidscount.org/data/tables/7172-children-in-kinship-care?loc=1&loct=2#ranking/2/any/true/1049/any/14207
[5] Cal.Fam.Code § 6550 and 6552

[6]Rev. Code Wash. Ann. section 7.70.065

[7] Ohio Rev. Code Ann. § 3109.53