Family law

1. Family law Who can make medical decisions for a minor child?

2. Who is a minor child? • Anyone who is 17 years old or younger • Exception: • “Emancipated minor” • A 16 or 17-year-old who has obtained an order of emancipation from a district court judge • Married • Serving in the armed forces • Emancipated minors are treated as adults and are no longer under the supervision/control of their parents

3. Who is permitted to make medical decisions for a minor child? • Natural (i.e., biological) parents • This includes children conceived by artificial insemination • Adoptive parents • Either parent in an “intact” family has the right to make medical decisions and consent to treatment; exceptions exist when parents are separated or divorced.

4. Who is permitted to make medical decisions for a minor child? • Either parent, when they are separated or divorced and there is no custody order • The parent given the right to make decisions in any legal custody order • An adult who is standing in place of parent, by having taken on parental obligations, particularly the burden of support

5. Who is permitted to make medical decisions for a minor child? • Legal guardian • A legal guardian for a minor must be appointed by the Clerk of Court • A legal guardian may be appointed only when there are no natural or adoptive parents alive (limited exceptions in juvenile delinquency cases) • No legal validity to a parent “giving” guardianship to another adult

6. Who is permitted to make medical decisions for a minor child? • Stand-by guardian • A person appointed to “stand by” to assert parental authority in a case when the parent has a seriously chronic or terminal illness • Appointment must be made by the Clerk of Court • Can exist in situation where a natural parent is living

7. Who is permitted to make medical decisions for a minor child? • Department of Social Services • If DSS has removed the child from the home and obtained a court order making it the legal custodian, but only for routine or emergency medical or surgical care or treatment • If the child has no parents or has been abandoned, until the appointment of a legal guardian • Foster parent, if DSS has authorized • Note: Parents retain right to consent to elective care, even if child is in DSS custody

8. Who is permitted to make medical decisions for a minor child? • Legal custodian • Anyone who has a court order granting that person custody of the minor child • Grandparent • Other relative • Non relative • For someone other than parent to be given custody, parent must be shown to have acted in a way that is contrary to his right to care and control of the child

9. Who is permitted to make medical decisions for a minor child? • A person who has been appointed by the parent (or other person with the right to make health care decisions for the child) to make decisions • Health Care Power of Attorney for a Minor is a formal document; informal documents are valid • Exception: a parent may not delegate the power to consent to the withholding or withdrawal of life sustaining procedures

10. Who is permitted to make medical decisions for a minor child? • The minor, him or herself, for • Contraception • Treatment of STD’s • Abuse of controlled substances or alcohol • Emotional disturbance • Pregnancy and prenatal care • Care for the minor’s child • Abortion, but only when accompanied by consent from appropriate adult, unless such consent is waived by a court

11. When may a physician provide information to a minor’s parent? • Physician is prohibited from notifying parent (or other adult allowed to consent) of provision of medical services if minor is permitted to consent to them -- • Except, when in the opinion of the physician, notification is “essential to the life or health of the minor.” • Physician may share information, in his/her discretion, with the parent (or other adult) if the physician is contacted by the parent.

12. Who is NOT permitted to make health care decisions for a minor? • A parent whose parental rights have been terminated by the court • A parent whose custodial rights to make decisions have been taken away by court order • A step-parent, unless the step parent has taken on parental obligations, particularly support

13. Ways to establish decision-making power in a non-parent • Parent gives another adult a power of attorney to make decisions • Non-parent adult obtains custody • Seek establishment of legal guardianship if parents are deceased

14. When can a physician treat a minor without consent? • Adult with authority cannot be located when minor needs treatment; • Identity of minor is unknown; • Efforts to locate adult would cause delay that would seriously worsen condition or be life-threatening • Parent refuses treatment and two physicians conclude that withholding treatment would endanger child’s life or seriously worsen his condition

15. Additional information • Health Care for Pregnant Adolescents – A Legal Guide for Health Care Providershttp://www.sog.unc.edu/sites/www.sog.unc.edu/files/HCP91901.pdf

16. Medical-Legal Partnership • New Website: http://www.law.duke.edu/partnershipforchildren/index.html