Delaware Temporary Guardianship Agreement

Introduction

Key Things to Know

1. 1

   Delaware uses two separate parent-approved relative-caregiver affidavits: the medical affidavit under 13 Del. C. 708 (the caregiver signs it before a notary and the parent, legal custodian or guardian signs to approve) and the Caregivers School Authorization under 14 Del. C. 202(f). The school statute requires the most recent DHSS form, so for school use the official form controls.

2. 2

   The medical affidavit is valid for 1 year unless the minor no longer lives in the caregiver's home or a parent, custodian or guardian revokes the approval. The school authorization is honored through the school year of filing plus 1 following year if filed before January 1, or 2 following years if filed on or after January 1, and expires August 1 of the applicable year unless the school district permits an extension.

3. 3

   For medical consent, the caregiver's signature must be notarized and the caregiver states they are 18 or older and that the minor lives with them. The affidavit carries the names and signatures of the parents, legal custodian or guardian approving it, or a statement of the reasonable effort made to locate them. For school, the caregiver and the parents, custodians or guardians all sign with notarized and dated signatures. Neither statute says whether one or both parents must sign. There is no court or state filing: the caregiver presents the medical affidavit when seeking treatment and submits the school authorization to the district where the child seeks enrollment.

4. 4

   Medical consent covers developmental and mental health screening and treatment, ordinary and necessary medical and dental examination and treatment, blood testing, preventive care including ordinary immunizations, well-child care, and treatment of injuries or conditions that if untreated threaten health or life. Blood testing excludes HIV/AIDS and controlled-substance testing and anything needing a separate court order or informed consent. A health care facility or practitioner must honor the caregiver's decision unless it has actual knowledge of a contrary parental decision. The school authorization lets the caregiver act in the parent's place on education decisions, including special education, and serve as school contact for truancy, discipline and school-based medical care.

5. 5

   Only a relative caregiver may serve: an adult who by blood, marriage or adoption is the minor's great grandparent, grandparent, step grandparent, great aunt, aunt, great uncle, uncle, stepparent, sibling (full, half or step), niece, nephew, first cousin or first cousin once removed, with whom the minor lives and who is not the legal custodian or guardian. The school list adds stepaunt and stepuncle and requires a Delaware resident living in the enrolling district. Friends and unrelated adults cannot use either affidavit.

6. 6

   This is not a court guardianship. Custody and the parent's rights stay unchanged, and it does not make the caregiver a legal guardian. The medical affidavit ends if the minor no longer lives with the caregiver or a parent, custodian or guardian revokes approval, and the caregiver must then notify the health care providers or plans involved. The school authorization may be cancelled at any time if the minor stops living with the caregiver or on written revocation by the caregiver, parent, legal custodian or guardian. A false statement on the medical affidavit can bring a $1,000 civil penalty per child; on the school authorization, a minimum $1,000 civil penalty and possible criminal prosecution.

7. 7

   If these affidavits do not fit your situation, for example the caregiver is not a listed relative or a longer or court-backed arrangement is needed, Delaware Family Court hears guardianship petitions under 13 Del. C. ch. 23, including emergency relief, and a parent with a progressive chronic condition or terminal illness may petition for a standby guardian. A court guardianship over a parent's objection is a contested case. DocDraft's guardianship-of-a-minor-petition page covers the court petition. For abuse or danger to a child, contact the Delaware child protective agency. For disputes between parents, see DocDraft's child-custody-agreement and parenting-plan pages.

Delaware Requirements for Temporary Guardianship Agreement

• Relative Caregiver Medical Affidavit

  A relative caregiver may consent to a minor's medical treatment using the Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors (13 Del. C. 707(b)(6), 708(a)).

• Relatives Only

  The caregiver must be an adult relative by blood, marriage or adoption from the statutory list, with whom the minor lives and who is not the legal custodian or guardian. Friends and unrelated adults cannot use either affidavit (13 Del. C. 707(a)(3); 14 Del. C. 202(f)).

• Caregiver Statement and Notarized Signature

  The caregiver's signature on the medical affidavit must be notarized, with a signed statement that the caregiver is 18 or older and that the minor resides with the caregiver (13 Del. C. 708(a)).

• Parent Approval or Reasonable Efforts

  The medical affidavit carries the names and signatures of the parents, legal custodian or guardian indicating their approval, or a statement of the reasonable effort made to locate them (13 Del. C. 708(a)).

• One-Year Medical Term

  The medical affidavit is valid for 1 year unless the minor no longer resides in the caregiver's home or a parent, custodian or guardian revokes the approval (13 Del. C. 708(b)).

• Caregivers School Authorization

  School enrollment uses a completed and notarized Caregivers School Authorization on the most recent DHSS form, honored through the school year formula in the statute and expiring August 1 unless the district permits an extension (14 Del. C. 202(f)).

• Defined Medical Powers and Exclusions

  Medical treatment is defined in 13 Del. C. 707(a)(2). Blood testing excludes HIV/AIDS and controlled-substance testing and anything needing a separate court order or informed consent.

• Parent's Decision Supersedes

  A parent's, legal custodian's or guardian's decision supersedes the caregiver's decision, and a provider need not honor the caregiver's decision with actual knowledge of a contrary parental decision (13 Del. C. 708(d), (f)).

• Revocation and Good-Faith Reliance

  The approval may be revoked by a parent, custodian or guardian, and no person who relies in good faith on a fully executed medical affidavit in providing medical treatment is subject to criminal or civil liability or professional discipline (13 Del. C. 708(b), (e)).