Montana Code 40-6-501. Purpose — legislative intent — parental rights — definitions
40-6-501. Purpose — legislative intent — parental rights — definitions. (1) The legislature recognizes that the rights of parents to the custody and control of a child are based upon liberties secured by the United States and Montana constitutions and that a parent’s rights to that custody and control of a child are therefore normally supreme to the interests of other persons. The legislature also recognizes a growing phenomenon in which absent or otherwise unavailable parents have temporarily surrendered the custody and care of their children to a grandparent or other relative for lengthy periods of time. Regardless of the purpose of the absence, a child willfully surrendered to a relative for an extended time period still has the same needs as a child in the care of its parents. In this situation, a caretaker relative assumes responsibilities for the child but has no legal right of control over the child, a situation that interferes in the caretaker relative’s ability to perform routine functions of child rearing, including tending to the medical needs of the child. It is therefore the purpose of the legislature in these instances to protect the rights of a child granted by Article II, section 15, of the Montana constitution by granting a caretaker relative limited authority for a child left in the relative’s care.
Terms Used In Montana Code 40-6-501
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- United States: includes the District of Columbia and the territories. See Montana Code 1-1-201
- Willfully: when applied to the intent with which an act is done or omitted, means a purpose or willingness to commit the act or make the omission referred to. See Montana Code 1-1-204
(2)It is the intent of the legislature that a caretaker relative given the responsibility of caring for a child with little or no warning and without any other provision having been made for the child’s care, such as the appointment of a guardian or the provision of a power of attorney, be granted authority to consent to medical care for the child without superseding any parental rights regarding the child.
(3)Section 40-6-502 and this section are not intended to affect the rights and responsibilities of a parent, legal guardian, or other custodian regarding the child, do not grant legal custody of the child to the caretaker relative, and do not grant authority to the caretaker relative to consent to the marriage or adoption of the child or to receive notice of a medical procedure, including abortion, not consented to by the relative, if notice is required by law, for the child except as expressly provided in this section.
(4)For the purposes of 40-6-502 and this section, the following definitions apply:
(a)”Caretaker relative” or “relative” means an individual related by blood, marriage, or adoption by another individual to the child whose care is undertaken by the relative, but who is not a parent, foster parent, stepparent, or legal guardian of the child.
(b)”Caretaker relative medical authorization affidavit” or “affidavit” means an affidavit completed in compliance with 40-6-502.
(c)”Health care provider” means a person who provides medical care.
(d)”Medical care” means care by a health care provider, for which parental consent is normally required, for the prevention, diagnosis, or treatment of a mental, physical, or dental injury or disease.
(e)”Parent” means a biological or adoptive parent or other legal guardian of a child.