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Senate Bill 88 Summary and Analysis1

Origins of Senate Bill 88

Senate Bill 88 ("SB 88") or the "Care of a Grandchild Act" was introduced by Senator Unterman on January 31 in the Georgia 2007 General Assembly Legislative Session. This bill was previously introduced using similar language in the Georgia 2006 Legislative Assembly Session as Senate Bill 420 which was withdrawn in the House and recommitted to the Rules Committee on March 27, 2006.

Legislative Purpose

The proposed bill, if enacted, would amend Chapter 9 of Title 19 of the Official Code of Georgia Annotated (O.C.G.A.) in order to provide for the creation, authorization, procedure, revocation and termination of a power of attorney from a parent to a grandparent for the care of a grandchild. The bill also provides for the creation of a program to provide a subsidy to certain grandparents raising grandchildren under certain circumstances.

Summary and Explanation of the Proposed Changes

SB 88 will allow grandparents or great-grandparents (biological or step) of a minor child to have power of attorney after a parent or parents having legal custody of the minor child have executed the power of attorney according to the proposed bill. SB 88 proposes to amend Chapter 9 of Title 19 of the O.C.G.A. by adding a new Article 4 (§ 19-9-120 to § 19-9-129; § 19-9-140 to § 19-9-142), which does the following:

Part1:

  1. Allows the minor child's parent(s) to delegate to any grandparent residing in Georgia caregiving authority when under hardship

    1. § 19-9-122(a) would allow for caregiving authority to be delegated to grandparents without the approval of a court by executing in writing a power of attorney.

    2. § 19-9-122(b) defines hardships to include: death of the other parent, serious illness or terminal illness of a parent, the physical or mental condition of the parent or the child such that care and supervision of the child cannot be provided by the parent, the incarceration of a parent, loss or uninhabitability of the child's home as the result of a natural disaster, a period of active military duty exceeding 24 months.

    3. § 19-9-122(c) expressly states that "Hardship shall not include the granting of a power of attorney for the care of a minor child for the purpose of subverting an investigation of the child's welfare initiated by the Department of Human Resources or other agency responsible for such investigations."

  1. Permits agent grandparents to perform care-giving functions and requires them to act in the best interests of the child

    1. § 19-9-123 would grant power of attorney to grandparents which would expressly authorize the grandparents to: enroll the minor child in school, arrange and consent to medical, dental, and mental health treatment for the child, provide for the child's food, housing and travel and any additional powers as specified by parent.

    2. To enroll a child in school the grandparent must provide residency documentation as is customary in the school district (§ 19-9-124(b)(3)), and the school may request reasonable evidence of the stated hardship (§ 19-9-124(b)(4)). Under § 19-9-127(a) the parent shall certify that the execution of the power of attorney is not for the primary purpose of enrolling the child in a school for the sole purpose of participating in the academic or interscholastic athletic programs by that school (except as permitted under the federal No Child Left Behind Act).

  1. Requires a written power of attorney executed by parent(s) having legal custody of the minor child and signed and acknowledged before a public notary

    1. SB 88 clarifies the procedure for executing this power of attorney when parents have joint legal custody and when one parent has sole legal custody. When parents have joint legal custody, they both must execute power of attorney and both have power to revoke/grant authority (§ 19-9-127(b)). When one parent has sole legal custody, only the custodial parent has authority to execute or revoke power of attorney (§ 19-9-127(c)). The bill requires any non-custodial parent to be notified in writing of the name and address of the grandparent who has been appointed under the power of attorney within five days of the execution of the instrument (§ 19-9-127(b)(2)).

  1. Provides a procedure for the revocation of the power of attorney

    1. Under § 19-9-128 the agent grandparent has authority to act on behalf of the minor child until each parent who executed the power of attorney revokes the power of attorney in writing and a copy of the revocation is received by the agent grandparent. The parent must send a copy of the revocation within five days of the execution of the revocation and also notify the school, health care providers and others known to have relied on such power of attorney (§ 19-9-128(a)(3)&(4)).

    2. The power of attorney for the care of a minor child may also be terminated by any order of a court of competent jurisdiction (§ 19-9-128(b)).

    3. The agent grandparent must notify the school where the minor child is enrolled about a change in residence that is expected to last more than six weeks during a school term that is not due to hospitalization, vacation, study abroad or some reason otherwise acceptable to the school (§ 19-9-128(c)(1)).

  1. Provides a procedure for the agent grandparent to resign

    1. Under § 19-9-128(c)(2) an agent grandparent may resign as guardian by notifying the parent in writing and if the grandparent knows the parent's hardship still exists must also notify child protective services or any other government authority charged with assuring proper care of such minor child.

    2. Under § 19-9-128(c)(3) upon the death of the authorizing parent, the agent grandparent shall notify the surviving parent or if whereabouts are unknown, the power of attorney may continue for up to six months until more permanent custody arrangements can be made.

Part 2: Grandchildren's Caregiver Subsidy Act

  1. Establishes a program for providing a grandchild caregiver subsidy to eligible persons

    1. § 19-9-142 specifies who is eligible for this subsidy program, stating that funds shall be provided on behalf of any minor child: (i) in the legal custody or under temporary or permanent guardianship of a grandparent who resides in Georgia; (ii) whose grandparent has an annual income less than 200 percent of the federal poverty level for the number of dependents including grandchildren living in the household; and (iii) who is participating in a grandparent raising grandchildren support program sponsored by the area agency on aging for the regional area where the grandparent resides.

    2. Eligible grandparents shall receive a monthly grandchild subsidy equal to 80 percent of the state-wide average foster care rate for each minor grandchild (§ 19-9-142(c)) and must provide written affirmation no later than the fifth day of each month that the grandchild continues to live in the grandparent's household (§ 19-9-142(e)(2)(B)).

    3. The program is capped at 1500 families participating at any given time (§ 19-9-142(e)(2)(A)), and periodic verification of eligibility to remain in the program shall be completed at least annually for each family participating in the program (§19-9-142(e)(2)(D)).

  1. Requires that funds from the subsidy program be used only for permitted purposes

    1. § 19-9-142(e)(2)(E) requires that funds be used for the purchase of goods (clothes, food, school supplies) and the purchase of services (medical co-payments, school expenses, transportation costs). The funds cannot be used to purchase tobacco products, liquor, firearms, or any item illegal for a minor to possess, receive or consume (§ 19-9-142(e)(2)(F)).

  1. Sanctions for grandparents who fail to comply with requirements of the program

    1. § 19-9-142(f) provides that a grandparent who knowingly fails to comply with the requirements of the program or fails to notify the department when the grandparent no longer meets the eligibility requirements shall be punished by law and shall also repay all subsidy amounts paid during the period of ineligibility.

  1. Monitors the status of the subsidy program

    1. § 19-9-142(g) requires that a yearly status report shall be submitted by each area agency on aging grandparent support program to the department's division.

    2. Under § 19-9-142(h) the department shall provide for evaluation of the program during the first two years of the program if sufficient funding is appropriated for that purpose. The results of this evaluation shall be published to the General Assembly during the session following the second year of the evaluation.

Conclusion

SB 88 provides parents the ability to delegate caregiving authority for their minor child to an agent grandparent with minimal court involvement. The subsidy program seeks to help qualifying grandparents to be able to provide for their minor grandchildren. However, the bill does not address the potential of more than 1500 families qualifying for the program and does not provide criteria to determine which families are chosen to participate if that is the case.

1 February 24, 2007 by Akshara Menon, Student Attorney, Emory University School of Law Class of 2007

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