Hawaii Temporary Guardianship Agreement

Introduction

Key Things to Know

1. 1

   Hawaii's instrument is a power of attorney delegating parental powers under HRS 560:5-105 (the statute is titled Delegation of power by parent or guardian). A parent or guardian delegates the power to another person. HRS 577-28 and HRS 302A-482 add two caregiver affidavits, which the caregiver signs. The school affidavit is the one provided by the Department of Education.

2. 2

   The power of attorney may last for a period not exceeding one year, and the time limit must be expressly stated in the document. HRS 560:5-105 has no renewal provision. The health care and school affidavits both end when the parent rescinds in writing.

3. 3

   HRS 560:5-105 refers to a parent or guardian and does not mention notarization, witnesses or filing with a court. The health care affidavit under HRS 577-28 must be notarized, the caregiver signs it under oath, and the caregiver must possess and present it to the provider. The school affidavit is presented to the Department of Education for inclusion in the minor's file.

4. 4

   The affidavits call for the parent, guardian or legal custodian to sign a consent, unless the caregiver states they could not obtain it and documents the attempts. The school affidavit also requires an affirmation that the child does not live with the caregiver to attend a particular school, avoid a district exemption, or join athletics or special programs.

5. 5

   The power of attorney can delegate any power regarding the care, custody, or property of the minor, except the power to consent to marriage or adoption. The health care affidavit covers primary and preventive medical and dental care, diagnostic testing, and other medically necessary health care and treatment, prescribed or supervised by a licensed physician, APRN, dentist or mental health professional. The school affidavit covers enrollment and full participation in curricular and co-curricular activities. The health care consent does not apply for IDEA or section 504 purposes.

6. 6

   This is not a court guardianship, and legal custody is not given to the caregiver by either affidavit. A person who relies in good faith on the health care affidavit has no obligation to inquire further and is not subject to civil or criminal liability or professional disciplinary action because of that reliance. That protection is stated for the health care affidavit, not for the power of attorney. For the affidavits, a caregiver is at least 18 and either related by blood, marriage or adoption, or has lived with the minor continuously for the preceding six months or more.

7. 7

   If this document does not fit your situation, or a longer or court-backed arrangement is needed, guardianship of a minor in Hawaii is a court process. DocDraft's guardianship-of-a-minor-petition page covers the court petition. For abuse or danger to a child, contact the Hawaii child protective agency. For disputes between parents, see DocDraft's child-custody-agreement and parenting-plan pages.

Hawaii Requirements for Temporary Guardianship Agreement

• Parent-Signed Power of Attorney

  A parent or guardian of a minor may delegate to another person, by a power of attorney, any power regarding the care, custody, or property of the minor (HRS 560:5-105).

• One-Year Stated Time Limit

  The delegation may be for a period not exceeding one year, and the time limit must be expressly stated in the document. The section has no renewal provision (HRS 560:5-105).

• Marriage and Adoption Exclusion

  The power to consent to marriage or adoption cannot be delegated (HRS 560:5-105).

• Notarized Health Care Affidavit

  A caregiver who possesses and presents a notarized affidavit of caregiver consent for a minor's health care may consent to primary and preventive medical and dental care, diagnostic testing, and other medically necessary health care and treatment, prescribed or supervised by a licensed physician, APRN, dentist or mental health professional. The caregiver signs under oath (HRS 577-28(a), (b)).

• School Affidavit From the Department of Education

  A caregiver may consent to school enrollment and full participation in curricular and co-curricular activities using the affidavit provided by the Department of Education, presented for inclusion in the minor's file (HRS 302A-482(a)).

• Caregiver Eligibility

  For the affidavits, a caregiver is at least 18 and is related by blood, marriage or adoption, or has lived with the minor continuously for the preceding six months or more (HRS 577-28(g); HRS 302A-481).

• Parent Consent Signature on Affidavits

  The affidavits call for the parent, guardian or legal custodian to sign consent, unless the caregiver states they could not obtain it and documents the attempts (HRS 577-28(b)(9); HRS 302A-482(a)(9)).

• Written Rescission

  The health care affidavit is superseded by written notification of rescission from the parent, guardian or legal custodian to the health care professionals, and the school affidavit may be rescinded by informing the principal in writing (HRS 577-28(c); HRS 302A-482).

• Good-Faith Reliance on Health Care Affidavit

  A person who relies in good faith on the health care affidavit has no obligation to conduct further inquiry and is not subject to civil or criminal liability or professional disciplinary action because of that reliance (HRS 577-28(d)).