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 STDs
• Abuse of controlled substances or alcohol
• Emotional disturbance
• Pregnancy and prenatal care
• Care for the minors 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
minors 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 childs 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

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Medical-Legal Partnership

• New Website
• http//www.law.duke.edu/partnershipforchildren/ind
  ex.html