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Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

                            CHAPTER 404-S.F.No. 3018 
                  An act relating to children; providing for designation 
                  of standby and alternate custodians of children; 
                  amending Minnesota Statutes 1998, sections 171.07, 
                  subdivision 11; and 524.5-505; proposing coding for 
                  new law as Minnesota Statutes, chapter 257B; repealing 
                  Minnesota Statutes 1998, sections 257A.01; 257A.02; 
                  257A.03; 257A.04; 257A.05; 257A.06; 257A.07; 257A.08; 
                  257A.09; and 257A.10. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1998, section 171.07, 
        subdivision 11, is amended to read: 
           Subd. 11.  [DESIGNATED CAREGIVER STANDBY OR TEMPORARY 
        CUSTODIAN.] (a) Upon the written request of the applicant on a 
        form developed by the department, which contains the information 
        specified in paragraph (b), and upon payment of an additional 
        fee of $3.50, the department shall issue a driver's license or 
        Minnesota identification card bearing a symbol or other 
        appropriate identifier indicating that the license holder has 
        appointed an individual to serve as a designated 
        caregiver standby or temporary custodian under chapter 257A 
        257B. 
           (b) The form shall provide as follows:  
           "...(Name of parent(s))... appoints ...(name of designated 
        caregiver)... to provide care for ...(name of child or 
        children)... when requested by the parent(s) or when the 
        parent(s) is unable to care for the child (children) and unable 
        to request the designated caregiver's assistance. 
           The designated caregiver will care for the child (children) 
        named in this form for (choose one of the following): 
           (indicate a specified period of time that is less than one 
        year); or 
           (indicate that care is to be provided for one year). 
           The designated caregiver has the powers and duties to make 
        decisions and meet the child's (children's) needs in the areas 
        checked or specified below: 
           education ..... 
           health care ..... 
           religion ..... 
           day care ..... 
           recreation ..... 
           other ..... 
         ........................................................... 
         ........................................................... 
         ........................................................... 
           The designated caregiver (choose one of the following): 
           is ... 
           is not ... 
           authorized to make decisions about financial issues and 
        control financial resources provided for the child (children) by 
        the parent. 
           This designated caregiver agreement is effective for four 
        years following the date it is signed by the parent(s), 
        designated caregiver, and any alternate designated caregiver.  
        However, the agreement may be canceled by a parent, a designated 
        caregiver, or an alternate designated caregiver at any time 
        before that date, upon notice to the other parties to the 
        agreement.  All parents who have court-ordered visitation rights 
        to the child must consent to the agreement. 
           (Signature(s) of parent(s) with legal custody and Minnesota 
        driver's license(s) or Minnesota identification card number(s)) 
           (Designated caregiver signature, Minnesota driver's license 
        or Minnesota identification card number, address, and telephone 
        number) 
           (Alternate designated caregiver signature, Minnesota 
        driver's license or Minnesota identification card number, 
        address, and telephone number) 
           (Date .....) 
           (Notarization .....)" The request must be accompanied by a 
        copy of the designation executed under section 257B.04. 
           (c) The department shall maintain a computerized records 
        system of all persons listed as designated caregivers standby or 
        temporary custodians by driver's license and identification card 
        applicants.  This data shall be released to appropriate law 
        enforcement agencies under section 13.69.  Upon a parent's 
        request and payment of a fee of $3.50, the department shall 
        revise its list of designated caregivers and alternates standby 
        or temporary custodians to reflect a change in the appointment 
        of a designated caregiver. 
           (d) At the request of the license or card holder, the 
        department shall cancel the designated caregiver standby or 
        temporary custodian indication without additional charge.  
        However, this paragraph does not prohibit a fee that may be 
        applicable for a duplicate or replacement license or card, 
        renewal of a license, or other service applicable to a driver's 
        license or identification card. 
           (e) Notwithstanding sections 13.08, subdivision 1, and 
        13.69, the department and department employees are conclusively 
        presumed to be acting in good faith when employees rely on 
        statements made, in person or by telephone, by persons 
        purporting to be law enforcement and subsequently release 
        information described in paragraph (b).  When acting in good 
        faith, the department and department personnel are immune from 
        civil liability and not subject to suit for damages resulting 
        from the release of this information. 
           (f) The department and its employees: 
           (1) have no duty to inquire or otherwise determine whether 
        a form designation submitted under this subdivision contains the 
        signatures of all parents who have legal custody of a child or 
        whether all parents who have court-ordered visitation rights to 
        the child have consented to the agreement is legally valid and 
        enforceable; and 
           (2) are immune from all civil liability and not subject to 
        suit for damages resulting from a claim that any parent with 
        legal custody of a child has not signed the form or that a 
        parent who has court-ordered visitation rights to the child did 
        not consent to the agreement the designation was not legally 
        valid and enforceable. 
           (g) Of the fees received by the department under this 
        subdivision: 
           (1) Up to $111,000 received in fiscal year 1997 and up to 
        $61,000 received in subsequent fiscal years must be deposited in 
        the general fund. 
           (2) All other fees must be deposited in the trunk highway 
        fund. 
           Sec. 2.  [257B.01] [DEFINITIONS.] 
           Subdivision 1.  [SCOPE.] The definitions in this section 
        apply to this chapter. 
           Subd. 2.  [ALTERNATE.] "Alternate" means a person with all 
        the rights, responsibilities, and qualifications of a standby 
        custodian who shall become a standby custodian if the currently 
        designated standby custodian is unable or unwilling to fulfill 
        the obligations of custodian. 
           Subd. 3.  [ATTENDING PHYSICIAN.] "Attending physician" 
        means a physician who has primary responsibility for the 
        treatment and care of the designator.  If physicians share 
        responsibility, another physician is acting on the attending 
        physician's behalf, or no physician has primary responsibility, 
        any physician who is familiar with the designator's medical 
        condition may act as an attending physician under this chapter. 
           Subd. 4.  [CO-CUSTODIAN.] "Co-custodian" means a standby 
        custodian who is acting as custodian along with the parents and 
        shares physical or legal custody of the children, or both, due 
        to the occurrence of a triggering event. 
           Subd. 5.  [CONSENT.] "Consent" means a written 
        authorization signed by the designator in the presence of two 
        witnesses who also sign the writing.  The witnesses must be 18 
        years of age or older and not named in the designation. 
           Subd. 6.  [DEBILITATION.] "Debilitation" means a person's 
        chronic and substantial inability, as a result of a physically 
        incapacitating disease or injury, to care for the children. 
           Subd. 7.  [DESIGNATION.] "Designation" means a written 
        document naming a standby or temporary custodian.  A parent may 
        designate an alternate standby custodian in the same writing.  A 
        parent may not designate an alternate temporary custodian. 
           Subd. 8.  [DESIGNATOR.] "Designator" means a parent or 
        legal custodian who appoints a standby or temporary custodian. 
           Subd. 9.  [DETERMINATION OF DEBILITATION.] "Determination 
        of debilitation" means a written finding made by an attending 
        physician which states that the designator suffers from a 
        physically incapacitating disease or injury.  No identification 
        of the illness in question is required. 
           Subd. 10.  [DETERMINATION OF INCAPACITY. ] "Determination 
        of incapacity" means a written finding made by an attending 
        physician which states the nature, extent, and probable duration 
        of the designator's mental or organic incapacity. 
           Subd. 11.  [INCAPACITY.] "Incapacity" means a chronic and 
        substantial inability, resulting from a mental or organic 
        impairment, to understand the nature and consequences of 
        decisions concerning the care of the designator's dependent 
        children and a consequent inability to care for the children. 
           Subd. 12.  [STANDBY CUSTODIAN.] "Standby custodian" means a 
        person named by a designator to assume the duties of 
        co-custodian or custodian of a child and whose authority becomes 
        effective upon the incapacity, debilitation and consent, or 
        death of the child's parent. 
           Subd. 13.  [TEMPORARY CUSTODIAN.] "Temporary custodian" 
        means a person named by a designator to assume the duties of 
        legal and physical custodian of a child for a specific time up 
        to 24 months. 
           Subd. 14.  [TRIGGERING EVENT.] "Triggering event" means a 
        specified occurrence stated in the designation that empowers a 
        standby or temporary custodian to assume the powers, duties, and 
        responsibilities of custodian or co-custodian. 
           Sec. 3.  [257B.02] [APPLICATION OF OTHER LAW; 
        CONSTRUCTION.] 
           Chapters 257 and 518 and sections 525.539 to 525.705 apply 
        to standby custodians, temporary custodians, co-custodians, 
        custodians, and alternates unless otherwise specified in this 
        chapter. 
           Nothing in this chapter may be construed to deprive a 
        parent of any parental rights or responsibilities.  A designator 
        does not lose any custodial rights by the appointment of a 
        standby or temporary custodian. 
           Nothing in this chapter may be construed to relieve any 
        parent of a duty to support the parent's children.  A 
        preexisting child support order is not suspended or terminated 
        during the time a child is cared for by a standby or temporary 
        custodian, unless otherwise provided by court order.  A standby 
        custodian or temporary custodian has a cause of action for child 
        support against an absent parent under section 256.87, 
        subdivision 5. 
           Sec. 4.  [257B.03] [DESIGNATOR.] 
           (a) A parent with legal and physical custody or a legal 
        custodian may designate a standby or temporary custodian by 
        means of a written designation unless the child has another 
        legal parent: 
           (1) whose parental rights have not been terminated; 
           (2) whose whereabouts are known; and 
           (3) who is willing and able to make and carry out the daily 
        custodial care and make decisions concerning the child. 
           (b) Notwithstanding paragraph (a), a parent or legal 
        custodian may designate a standby or temporary custodian with 
        the consent of the other parent, or as provided by section 
        257B.05, subdivision 6. 
           (c) A legal custodian pursuant to a designation of 
        temporary custodianship may not designate a different temporary 
        custodian. 
           Sec. 5.  [257B.04] [CONTENTS OF DESIGNATION.] 
           Subdivision 1.  [REQUIRED INFORMATION.] A designation of a 
        standby or temporary custodian must identify the designator 
        making the designation; the children; the other parent, if any; 
        the standby or temporary custodian; and the triggering event or 
        events upon which a standby or temporary custodian becomes a 
        co-custodian or custodian.  Different standby custodians may be 
        designated for different triggering events.  The designation 
        must include the signed consent of the standby or temporary 
        custodian and the signed consent of the other parent or a 
        statement why the other parent's consent is not required. 
           Subd. 2.  [SIGNATURE; WITNESSES.] The designation must be 
        signed by the designator in the presence of two witnesses who 
        are 18 years of age or older and not otherwise named in the 
        designation.  The witnesses must also sign the declaration. 
           If the designator is physically unable to sign the 
        designation, the designator may direct another person not named 
        in the designation to sign on the designator's behalf in the 
        presence of the designator and both witnesses. 
           Subd. 3.  [ALTERNATE.] A designator may, but need not, 
        designate an alternate standby custodian in the designation.  No 
        alternate temporary custodian may be named. 
           Subd. 4.  [RECOMMENDED FORM.] A designation may, but need 
        not, be in the following form:  "I (insert name of designator) 
        do hereby appoint (insert name, address, and telephone number of 
        standby or temporary custodian) as the standby or temporary 
        custodian of (insert name(s) of child(ren)) to take effect upon 
        the occurrence of the following triggering event or events 
        (insert specific triggering events). 
           I am the (insert designator's relationship to child(ren)) 
        of (insert name(s) of child(ren)).  (Insert name(s) of 
        child(ren)'s other parent) is the other parent of (insert 
        name(s) of child(ren)).  The other parent's address is: 
           (check all that apply): 
           .... The other parent died on (insert date of death). 
           .... The other parent's parental rights were terminated on 
        (insert date of termination). 
           .... The other parent's whereabouts are unknown.  I 
        understand that all living parents whose rights have not been 
        terminated must be given notice of this designation pursuant to 
        the Minnesota Rules of Civil Procedure or a petition to approve 
        this designation may not be granted by the court. 
           .... The other parent is unwilling and unable to make and 
        carry out day-to-day child-care decisions concerning the 
        child(ren). 
           .... The other parent consents to this designation and has 
        signed this form below. 
           By this designation I am granting (insert name of standby 
        or temporary custodian) the authority to act for 60 days 
        following the occurrence of the triggering event as a 
        co-custodian with me, or in the event of my death, as custodian 
        of my child(ren). 
           A temporary custodian appointment terminates upon the death 
        of the designator. 
           (Optional) I hereby nominate (insert name, address, and 
        telephone number of alternate standby custodian) as the 
        alternate standby custodian to assume the duties of the standby 
        custodian named above if the standby custodian is unable or 
        unwilling to act as a standby custodian. 
           If I have indicated more than one triggering event, it is 
        my intent that the triggering event which occurs first shall 
        take precedence.  If I have indicated "my death" as the 
        triggering event, it is my intent that the person named in the 
        designation to be standby custodian for my child(ren) in the 
        event of my death shall be appointed as guardian of my 
        child(ren) under Minnesota Statutes, section 525.551, upon my 
        death. 
           It is my intention to retain full parental rights to the 
        extent consistent with my condition and to retain the authority 
        to revoke the appointment of a standby or temporary custodian if 
        I so choose. 
           This designation is made after careful reflection, while I 
        am of sound mind. 
        ...........................         ...........................
        (Date)                              (Designator's Signature)
        ..........................          ..........................
        (Witness' Signature)                (Witnesses' Signature)
        ..........................          ..........................
        (Number and Street)                 (Number and Street)
        ..........................          ..........................
        (City, State, and Zip Code)         (City, State, and Zip Code)
           (IF APPLICABLE:  I (insert name of other parent) hereby 
        consent to this designation. 
        ...........................         ...........................
        (Date)                              (Signature of Other Parent)
        ..............................................................
        (Address of Other Parent)
           I, (insert name of standby or temporary custodian), hereby 
        accept my nomination as standby or temporary custodian of 
        (insert child(ren)'s name(s)).  I understand that my rights and 
        responsibilities toward the child(ren) named above will become 
        effective upon the occurrence of the above-stated triggering 
        event or events.  I further understand that in order to continue 
        caring for the child(ren), I must file a petition with the court 
        within 60 days of the occurrence of the triggering event. 
        ...........................          ...........................
        (Date)                               (Signature of Standby or
                                             Temporary Custodian)"
           Subd. 5.  [STANDBY OR TEMPORARY CUSTODIAN INDICATION ON 
        DRIVER'S LICENSE.] A designator who wishes to have a standby or 
        temporary custodian indication placed on the designator's 
        driver's license may do so as provided in section 171.07, 
        subdivision 11. 
           Sec. 6.  [257B.05] [PETITION FOR APPROVAL.] 
           Subdivision 1.  [GENERALLY.] A petition for approval of a 
        designation under this chapter may be made at any time by filing 
        with the court a copy of the designation.  No filing fee is 
        required to initiate the proceeding.  A court may, however, 
        determine the ability to pay fees in the event of a hearing on 
        the petition.  Only the designator may file a petition for 
        confirmation of a temporary custodian.  If the triggering event 
        has not occurred on or before the time of filing, only the 
        designator may file the petition for confirmation of a standby 
        custodian.  If the triggering event has occurred on or before 
        the time of filing, the standby custodian named in the 
        designation may file a petition containing one of the following: 
           (1) a determination of the designator's incapacity; 
           (2) a determination of the designator's debilitation and 
        the designator's signed and dated consent; or 
           (3) a copy of the designator's death certificate. 
           Subd. 2.  [NOTICE.] (a) The petitioner must serve any 
        person named in the designation and any other current caregiver 
        of the children with a copy of the petition and designation and 
        notice of any hearing within ten days of the filing of the 
        petition. 
           (b) If the petition alleges that a nondesignating parent 
        cannot be located, that parent must be notified in accordance 
        with section 518.11. 
           No notice is required to a parent whose parental rights 
        have been terminated by a court order. 
           Subd. 3.  [JURISDICTION.] For purposes of determining 
        jurisdiction under this chapter, the provisions of chapter 518D 
        apply. 
           Subd. 4.  [PRESUMPTIONS.] In a proceeding for judicial 
        confirmation of a standby custodian or temporary custodian, a 
        designation constitutes a presumption that the designated 
        custodian is capable of serving as co-custodian or custodian.  
        If the designator is the sole surviving parent, the parental 
        rights of the other parent have been terminated, or both parents 
        consent to the designation, there is a presumption that entry of 
        an order confirming the designation of the standby or temporary 
        custodian is in the best interest of the children. 
           Subd. 5.  [APPROVAL WITHOUT HEARING.] Approval of the 
        designation without a hearing is permitted if the designator is 
        the sole surviving parent, the parental rights of the other 
        parent have been terminated, or both parents consent to 
        confirmation of the standby or temporary custodian. 
           Subd. 6.  [HEARING.] A hearing is required if there is a 
        parent other than the designator whose parental rights have not 
        been terminated and who has not consented to the designation.  
        The court shall apply the factors in section 518.17 and make 
        specific findings in determining whether to confirm the 
        designation of the standby or temporary custodian, to appoint a 
        different custodian, or to grant custody to the other parent.  A 
        court that finds the appointment of the standby or temporary 
        custodian to be in the best interest of the child shall enter an 
        order confirming the designation. 
           Subd. 7.  [COURT APPEARANCE.] A designator who is medically 
        unable to appear in court need not appear. 
           Sec. 7.  [257B.06] [CUSTODIAN'S AUTHORITY.] 
           Subdivision 1.  [GENERALLY.] A standby or temporary 
        custodian may act as co-custodian or custodian upon the 
        occurrence of the triggering event.  The commencement of the 
        standby or temporary custodian's authority to act as 
        co-custodian pursuant to a determination of incapacity, a 
        determination of debilitation and consent, or the receipt of 
        consent alone does not itself divest the designator of any 
        parental rights but confers on the standby or temporary 
        custodian concurrent or shared custody of the child. 
           Subd. 2.  [DEATH OF DESIGNATOR.] The commencement of the 
        standby custodian's authority to act as custodian because of the 
        death of the designator does not confer upon the standby 
        custodian more than legal and physical custody of the child as 
        defined in chapter 518.  On the death of the designator, the 
        standby custodian shall be appointed a guardian pursuant to 
        section 525.551.  No separate petition is required.  No bond or 
        accounting is required except as specified in this chapter. 
           Subd. 3.  [INVOLVEMENT OF DESIGNATOR.] A co-custodian shall 
        assure frequent and continuing contact with and physical access 
        by the designator with the child and shall assure the 
        involvement of the parents, to the greatest extent possible, in 
        decision making on behalf of the child. 
           Subd. 4.  [EFFECT OF FILING.] The designator may file a 
        petition for approval of a designation with the court at any 
        time.  If the petition is approved by the court before the 
        occurrence of the triggering event, the standby or temporary 
        custodian's authority commences automatically upon the 
        occurrence of the triggering event.  No further petition or 
        confirmation is required.  If a designation has been made but 
        the petition for approval of the designation has not been filed 
        and a triggering event has occurred, the standby custodian has 
        temporary legal authority to act as a co-custodian or custodian 
        of the child(ren) without the direction of the court for a 
        period of 60 days.  The standby custodian must, within that 
        period, file a petition for approval in accordance with this 
        chapter.  If no petition is filed within 60 days, the standby 
        custodian loses all authority to act as co-custodian or 
        custodian.  If a petition is filed but the court does not act 
        upon it within the 60-day period, the temporary legal authority 
        to act as co-custodian or custodian continues until the court 
        orders otherwise. 
           Subd. 5.  [PARENTAL RIGHTS.] The commencement of a 
        co-custodian's or custodian's authority under this chapter does 
        not, by itself, divest a parent or legal custodian of any 
        parental or custodial rights. 
           Subd. 6.  [MODIFICATION OF APPOINTMENT.] Once a court has 
        confirmed the designation of a standby custodian, the 
        appointment may be modified only under section 518.18, except 
        that the designator may revoke the designation under section 
        257B.07. 
           Subd. 7.  [RESTORED CAPACITY.] If a licensed physician 
        determines that the designator has regained capacity, the 
        co-custodian's authority that commenced on the occurrence of a 
        triggering event becomes inactive.  Failure of a co-custodian to 
        immediately return the child(ren) to the designator's care 
        entitles the designator to an emergency hearing within five days 
        of a request for a hearing. 
           Sec. 8.  [257B.07] [REVOCATION.] 
           Subdivision 1.  [PREPETITION.] Prior to a petition being 
        filed under this chapter, the designator may revoke the 
        appointment of a standby or temporary custodian by destruction 
        of the designation and notification of the revocation to the 
        standby or temporary custodian. 
           Subd. 2.  [POSTPETITION.] After a petition has been filed, 
        the designator may revoke the designation of standby or 
        temporary custodian by: 
           (1) executing a written revocation; 
           (2) filing the revocation with the court; and 
           (3) notifying the persons named in the designation of the 
        revocation in writing. 
           Subd. 3.  [UNWRITTEN REVOCATION.] An unwritten revocation 
        of the designation may be considered by the court if it can be 
        proven by clear and convincing evidence. 
           Sec. 9.  [257B.08] [CONFLICTING DOCUMENTS.] 
           If a parent has appointed a testamentary guardian of the 
        person or estate of children by will under chapter 529 and there 
        is a conflict between the designation in the will and a duly 
        executed standby custodian designation, the document latest in 
        date of execution prevails. 
           Sec. 10.  [257B.09] [BOND.] 
           A standby or temporary custodian must not be required to 
        post bond prior to the occurrence of the triggering event.  The 
        court may require a bond if the standby or temporary custodian 
        is designated the co-custodian or custodian of the estate of the 
        children but may not require a bond for the co-custodianship of 
        the person of the children. 
           Sec. 11.  [257B.10] [TRANSITION.] 
           If a designated caregiver agreement entered under chapter 
        257A before the effective date of this section would have become 
        operative but for the operation of sections 1 to 13, the parent 
        who executed the agreement, or if the parent is unable to act, 
        the designated caregiver under the agreement may file a petition 
        under section 257B.05 to request that the designated caregiver 
        agreement be approved by the court as a standby custodian. 
           Sec. 12.  Minnesota Statutes 1998, section 524.5-505, is 
        amended to read: 
           524.5-505 [DELEGATION OF POWERS BY PARENT OR GUARDIAN.] 
           A parent or a guardian of a minor or incapacitated person, 
        by a properly executed power of attorney, may delegate to 
        another person, for a period not exceeding six months, any 
        powers regarding care, custody, or property of the minor or 
        ward, except the power to consent to marriage or adoption of a 
        minor ward.  A parent of a minor child may also delegate those 
        powers for a period not exceeding one year by a designated 
        caregiver agreement under chapter 257A by designating a standby 
        or temporary custodian under chapter 257B. 
           Sec. 13.  [REPEALER.] 
           Minnesota Statutes 1998, sections 257A.01; 257A.02; 
        257A.03; 257A.04; 257A.05; 257A.06; 257A.07; 257A.08; 257A.09; 
        and 257A.10, are repealed. 
           Sec. 14.  [EFFECTIVE DATE.] 
           This act is effective the day following final enactment. 
           Presented to the governor April 11, 2000 
           Signed by the governor April 14, 2000, 2:52 p.m.