Office of the Revisor of Statutes
Minnesota Session Laws - 2000, Regular Session
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.
Official Publication of the State of Minnesota
Revisor of Statutes