Minor Consent Related to Foster Parents and Stepparents

In our previous Risk E-Notes, we discussed general issues related to minor consent. This article addresses specific minor consent issues related to foster parents and stepparents.

Foster parents - Licensed foster parents provide residential foster care to a child placed in their custody by order of the juvenile court or voluntarily by the person who has legal custody of the child. With that transfer of care, foster parents are given the right to consent for "ordinary" medical treatment for the child. "Ordinary care" includes, but is not limited to, X-rays, immunizations, and physical exams. However, a foster parent generally may not give consent for other medical treatments including surgery or experimental treatment.

If a parent has voluntarily placed the child in foster care, the parties may agree in writing to allow the foster parent to consent to other types of treatment. However, if placement is through the juvenile court, the court retains the right to consent for treatment beyond ordinary care.

Stepparents - Generally, a stepparent does not have the authority to give legal consent to medical treatment for a minor child. However, there are several exceptions to this rule.

• A stepparent may give consent for a minor's medical care if the stepparent has legally adopted the child or has been designated as the child's legal guardian.

• A stepparent may authorize medical care for the minor by completing and signing a "Caregiver's Authorization Affidavit". This authorization is valid only if the following exist: 

o The minor is living with the qualified relative, such as a stepparent

 

o The stepparent must advise the parents of the proposed medical treatment and have received no objection OR they have been unable to contact the parents and

 

o The stepparent must complete the Caregiver's Authorization Affidavit.

When confronted with minor consent issues concerning either foster parents or stepparents, the provider should always ask to see a copy of the court's order providing legal custody. A copy of the Court Order or consent of the child's natural parent should be obtained and placed in the child's medical record and a visible alert should be placed in the EHR or on the chart indicating that there is a court order or consent in the medical record.

Authored by
Ann Whitehead, RN, JD
CAP Risk Management & Patient Safety

 

Published comments of this information should not be considered legal advice applicable to a specific situation. Legal guidance for individual matters should be obtained from a retained attorney.