Section 5-103
(a)
A parent or parents of a minor, other than a parent or parents whose parental rights have been terminated or a parent who has signed a voluntary surrender, or a guardian or guardians of a minor or incapacitated person may appoint a temporary agent for a period not exceeding 60 days, and may delegate to such agent any power that the parent or guardian has regarding the care, custody or property of the minor child, ward or incapacitated person, except the power to consent to marriage or adoption of a minor; provided, however, that no parent or guardian shall appoint a temporary agent when a court has ordered that the minor child be placed in the custody of a person other than the parent or guardian.
(b)
Any delegation under this section shall be by a writing signed by, or at the direction of, the parent(s) or guardian(s) and attested by at least 2 witnesses 18 years of age or older, neither of whom is the temporary agent together with the written acceptance of the temporary agent.
(c)
A parent or guardian may not appoint a temporary agent of a minor if the minor has another living parent whose whereabouts are known and who is willing and able to provide care and custody for the minor unless the nonappointing parent consents to the appointment in writing. A parent may not appoint a temporary agent if the appointing parent's parental rights have been terminated or a parent who has signed a voluntary surrender.
(d)
Any delegation under this section may be revoked or amended by the appointing parent(s) or guardian(s) and delivered to all interested persons. The authority of the temporary agent may be limited or altered by the court.
Comment
This section permits a temporary delegation of parental powers. For example, parents (or a guardian) of a minor plan to be out of the country for several months. They wish to empower a close relative (an uncle, e.g.) to take any necessary action regarding the child while they are away. Using this section, they could execute an appropriate power of attorney giving the uncle custody and power to consent. Then, if an emergency operation were required, the uncle could consent on behalf of the child; as a practical matter he would of course attempt to communicate with the parents before acting. The section is designed to reduce problems relating to consents for emergency treatment.
A guardian's authority over a ward or incapacitated person, described in § 5-209 (guardians of minors) and § 5-309 (guardians of incapacitated persons), includes authority regarding the care, custody and control of the ward that goes well beyond consenting to health care.
In contrast to § 5-102, which relates only to certain business affairs of minors, this section is pertinent to the affairs of minors and incapacitated persons for whom guardians have been appointed.
Massachusetts comment
This and § 5-202 would replace the short term emergency and standby emergency proxy provisions of G.L. c. 201, §§ 2A to 2H.
See also the Caregiver Authorization Affidavit under M.G.L. c. 201F enacted the same day as the Massachusetts Uniform Probate Code. By an affidavit a parent or guardian may grant concurrent rights to direct education and health care of a minor child.