HF 721 (LSB 1251HV (3) 88)

HOUSE FILE 721

BY  COMMITTEE ON JUDICIARY

(SUCCESSOR TO HSB 134)

A BILL FOR

An Act relating to the temporary delegation of parental authority by the parent, guardian, or legal custodian of a child.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  633F.1  Definitions.
   1.  “Agent” means a person granted authority to act for a parent, guardian, or legal custodian under a power of attorney created under this chapter.
   2.  “Child” means a person under eighteen years of age.
   3.  “Power of attorney” means a writing that grants authority to an agent to act in the place of a parent, guardian, or legal custodian regarding the care or custody of a child.
    Sec. 2.  NEW SECTION.  633F.2  Power of attorney —— temporary delegation of parental authority.
   1.  A parent, guardian, or legal custodian of a child, by a properly executed power of attorney, may delegate to another person any authority regarding the care or custody of the child except for any of the following powers:
   a.  The power to consent to the child’s marriage.
   b.  The power to consent to the child’s adoption. 
   c.  The power to consent to the performance or inducement of an abortion on or for the child.
   d.  The power to consent to the termination of the parental rights of a parent of the child.
   e.  The power to transfer the power of attorney to another person unless the other person is designated as a successor agent in the power of attorney.
   2.  A power of attorney executed under this chapter must be signed by all parents, guardians, and legal custodians. The power of attorney must be acknowledged before a notary public or other individual authorized by law to take acknowledgments. An agent named in the power of attorney shall not notarize the principal’s signature. An acknowledged signature on a power of attorney is presumed to be genuine.
   3.  A parent, guardian, or legal custodian of the child shall have the authority to revoke or terminate a power of attorney created under this chapter at any time by giving notice of the revocation in writing to the agent. 
   4.  A power of attorney created under this chapter shall be for a period of time not to exceed three months. A parent, guardian, or legal custodian of the child may execute a new power of attorney for an additional period of three months, but in no case shall a power of attorney created under this chapter be valid for more than six months. If a parent, guardian, or legal custodian revokes or terminates the power of attorney, the child shall be returned to the care and custody of the parent, guardian, or legal custodian within twenty-four hours of the date of the revocation or termination.
   5.  An agent shall exercise parental or legal authority on a continuous basis without compensation for the duration of the power of attorney and shall not be considered to be a foster parent subject to licensure by the department of human services pursuant to chapter 237. 
   6.  A power of attorney executed under this chapter by a parent, guardian, or legal custodian shall not constitute abandonment, abuse, or neglect of the child under chapter 232 by the parent, guardian, or legal custodian unless the parent, guardian, or legal custodian fails to take custody of the child upon the expiration of the power of attorney.
   7.  A power of attorney executed under this chapter by a parent, guardian, or legal custodian shall not be valid if the purpose is to avoid the filing of a child in need of assistance petition.
   8.  This chapter shall not apply to a power of attorney created pursuant to section 598C.204.
    Sec. 3.  NEW SECTION.  633F.3  Power of attorney temporary delegation of parental authority —— form.
   A document substantially in the following form may be used to create a power of attorney temporary delegation of parental authority that has the meaning and effect prescribed by this chapter:
POWER OF ATTORNEY TEMPORARY DELEGATION OF PARENTAL AUTHORITY FORM
   1.  POWER OF ATTORNEY
   This power of attorney authorizes another person (your agent) to make decisions concerning your child or children for you (the principal). Your agent will be able to make decisions and act with respect to your child or children. The meaning of authority over the child or children listed on this form is explained in the Power of Attorney temporary delegation of parental authority, Iowa Code chapter 633F. This power of attorney does not grant the agent the power to consent to a child’s marriage or adoption, to the performance or inducement of an abortion on or for a child, or to the termination of parental rights of a parent of a child or to the transfer of the power of attorney to a person other than to a person designated as a successor agent in this power of attorney. 
   You should select someone you trust to serve as your agent.
   Your agent is not entitled to compensation unless you state otherwise in the optional Special Instructions.
   This form provides for designation of one agent. If you wish to name more than one agent, you may name a coagent in the optional Special Instructions. Coagents must act by majority rule unless you provide otherwise in the optional Special Instructions.
   If your agent is unable or unwilling to act for you, your power of attorney will end unless you have named a successor agent. You may also name a second successor agent.
   This power of attorney becomes effective immediately upon signature and acknowledgment unless you state otherwise in the optional Special Instructions.
   If you have questions about this power of attorney or the authority you are granting to your agent, you should seek legal advice before signing this form.
DESIGNATION OF AGENT
   I _________________________ (name of principal) name the following person as my agent:
   Name of Agent ____________________________________________
   Agent’s Address __________________________________________
   Agent’s Telephone Number _________________________________
DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)
   If my agent is unable or unwilling to act for me, I name as my successor agent:
   Name of Successor Agent __________________________________
   Successor Agent’s Address ________________________________
   Successor Agent’s Telephone Number _______________________
   If my successor agent is unable or unwilling to act for me, I name as my second successor agent:
   Name of Second Successor Agent ___________________________
   Second Successor Agent’s Address _________________________
   Second Successor Agent’s Telephone Number ________________
GRANT OF GENERAL AUTHORITY
   I grant my agent and any successor agent general authority to act for me with respect to my child or my children as defined in the Power of Attorney Temporary Delegation of Parental Authority, Iowa Code chapter 633F.
SPECIAL INSTRUCTIONS
   You may give special instructions including the name and date of birth of the child on the following lines:
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   ___________________________________________________________
   __________________________________________________________.
EFFECTIVE DATE
   This power of attorney is effective immediately upon signature and acknowledgment unless I have stated otherwise in the optional Special Instructions.
RELIANCE ON THIS POWER OF ATTORNEY
   Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person knows it has terminated or is invalid.
SIGNATURE AND ACKNOWLEDGMENT
_____________________________                    _________________________
Your Signature                          Date
_____________________________
Your Name Printed
_____________________________
_____________________________
Your Address
_____________________________
Your Telephone Number
State of ____________________
County of ___________________
This document was acknowledged before me on _______________ (date), by __________________________ (name of principal)
_____________________________                      (Seal, if any)
Signature of Notary
My commission expires ________________
This document prepared by
___________________________________________________________
___________________________________________________________
   2.  IMPORTANT INFORMATION FOR AGENT
AGENT’S DUTIES
   When you accept the authority granted under this power of attorney, a special legal relationship is created between the principal and you. This relationship imposes upon you legal duties that continue until you resign or the power of attorney is terminated or revoked. You must do all of the following:
   Act in good faith.
   Do nothing beyond the authority granted in this power of attorney.
   Disclose your identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing your own name as agent in the following manner:
_______________________ (principal’s name) by _______________________ (your signature) as Agent
   Unless the Special Instructions in this power of attorney state otherwise, you must also do all of the following:
   Act loyally for the child’s or children’s and principal’s benefit.
   Avoid conflicts that would impair your ability to act in the child or children’s and principal’s best interest.
   Act with care, competence, and diligence.
TERMINATION OF AGENT’S AUTHORITY
   You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney. Events that terminate a power of attorney or your authority to act under a power of attorney include any of the following:
   The principal’s revocation of the power of attorney or your authority.
   The occurrence of a termination event stated in the power of attorney.
   The purpose of the power of attorney is fully accomplished.
   The time period specified in the power of attorney has expired.
   The three-month time period permitted under Iowa Code chapter 633F has expired.
   The three-month extension time period permitted under Iowa Code chapter 633F has expired.
LIABILITY OF AGENT
   The meaning of the authority granted to you is defined in the Power of Attorney Temporary Delegation of parental authority, Iowa Code chapter 633F. If you violate the Power of Attorney Temporary Delegation of parental authority, Iowa Code chapter 633F, or act outside the authority granted, you may be liable for any damages caused by your violation.
   If there is anything about this document or your duties that you do not understand, you should seek legal advice.
    Sec. 4.  NEW SECTION.  633F.4  Agent’s certification —— optional form.
   The following optional form may be used by an agent to certify facts concerning a power of attorney:
IOWA STATUTORY POWER OF ATTORNEY TEMPORARY DELEGATION OF PARENTAL AUTHORITY AGENT’S CERTIFICATION FORM
AGENT’S CERTIFICATION OF VALIDITY OF POWER OF ATTORNEY AND AGENT’S AUTHORITY
State of _________________________
County of ______________________
   I, ______________________________ (name of agent), certify under penalty of perjury that ______________________________ (name of principal) granted me authority as an agent or successor agent in a power of attorney dated _____________________.
   I further certify all of the following to my knowledge:
   The principal is alive and has not revoked the power of attorney or the Power of Attorney and my authority to act under the Power of Attorney have not terminated.
   If the power of attorney was drafted to become effective upon the happening of an event or contingency, the event or contingency has occurred.
   If I was named as a successor agent, the prior agent is no longer able or willing to serve.
   __________________________________________________________
   __________________________________________________________
   __________________________________________________________.
             (Insert other relevant statements)
SIGNATURE AND ACKNOWLEDGMENT
_____________________________                    _________________________
Agent’s Signature                          Date
_____________________________
Agent’s Name Printed
_____________________________
_____________________________
Agent’s Address
_____________________________
Agent’s Telephone Number
This document was acknowledged before me on _______________ (date), by __________________________ (name of agent)
_____________________________                      (Seal, if any)
Signature of Notary
My commission expires ________________
This document prepared by
___________________________________________________________
___________________________________________________________
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to the temporary delegation of parental authority by the parent, guardian, or legal custodian of a child.
   The bill provides that a parent, guardian, or legal custodian of a child, by a properly executed power of attorney, may delegate to another person any powers regarding the care or custody of the child except the power to consent to the child’s marriage, the power to consent to the child’s adoption, the power to consent to the performance or inducement of an abortion on or for the child, the power to consent to the termination of the parental rights of a parent of the child, and the power to transfer the power of attorney to another person unless the other person is designated as a successor agent in the power of attorney. A power of attorney executed under the bill must be signed by all parents, guardians, and legal custodians of a child and must be properly acknowledged by a notary. A parent, guardian, or legal custodian shall have the authority to revoke or terminate a power of attorney created under the bill at any time.
   A power of attorney created under the bill shall be for a period of time not to exceed three months. The parent, guardian, or legal custodian of the child may execute a new power of attorney for an additional period of three months, but a power of attorney created under the bill cannot exceed six months. If the parent, guardian, or legal custodian revokes or terminates the power of attorney, the child shall be returned to the care and custody of the parent, guardian, or legal custodian within 24 hours of the date of the revocation or termination. 
   An agent (person granted authority to act for a parent, guardian, or legal custodian under a power of attorney created in the bill) is required to exercise parental or legal authority on a continuous basis without compensation for the duration of the power of attorney and shall not be considered to be a foster parent subject to licensure by the department of human services pursuant to Code chapter 237 (child foster care facilities). A power of attorney executed under the bill by a parent, guardian, or legal custodian shall not constitute abandonment, abuse, or neglect of the child under Code chapter 232 by the parent, guardian, or legal custodian unless the parent, guardian, or legal custodian fails to take custody of the child or to execute a subsequent power of attorney upon the expiration of the power of attorney.
   A power of attorney created under the bill is not valid if the purpose is to avoid the filing of a child in need of assistance petition.
   The bill does not apply to a power of attorney created pursuant to Code section 598C.204 (power of attorney under the uniform deployed parents custody and visitation Act).
   The bill provides a form for a temporary delegation of a parental authority power of attorney.