Delaware Relative Caregivers' Medical Authorization Law

The Relative Caregivers' Medical Authorization law is in the Delaware Code at Chapter 13, Sections 707 and 708.

§ 707. Consent to health care of minors.

1. Definitions.  As used in this section:
   1. "Medical treatment" means developmental screening, mental health screening and treatment, and ordinary and necessary medical and dental examination and treatment, including blood testing, preventive care including ordinary immunizations, tuberculin testing and well-child care. Medical treatment also means the examination and treatment of any laceration, fracture or other traumatic injury, or any symptom, disease or pathology which may, in the judgment of the treating health care professional, if left untreated, reasonably be expected to threaten health or life.
   2. "Blood testing" includes Early Periodic Screening, Diagnosis, and Treatment (EPSDT) testing and other blood testing deemed necessary by documented history or symptomatology but excludes HIV/AIDS testing and controlled substance testing or any other testing for which separate court order or informed consent as provided by law is required.
   3. "Relative caregiver" or "caregiver" means an adult person, who by blood, marriage or adoption, is the great grandparent, grandparent, step grandparent, great aunt, aunt, great uncle, uncle, stepparent, brother, sister, step brother, step sister, half brother, half sister, niece, nephew, first cousin or first cousin once removed of a minor and with whom the minor resides, but who is not the legal custodian or guardian of the minor.
2. Parties authorized to give consent.  Consent to the performance upon or for any minor by any licensed medical, surgical, dental, psychological or osteopathic practitioner or any nurse practitioner/clinical nurse specialist or any hospital or public clinic or their agents or employees of any lawful medical treatment, and to the furnishing of hospitalization and other reasonably necessary care in connection therewith, may be given by:
   1. A parent or guardian of any minor for such minor;
   2. A married minor for himself or herself or, if such married minor be unable to give consent by reason of disability, then by his or her spouse;
   3. A minor of the age of 18 years or more for himself or herself;
   4. A minor parent for his or her child;
   5. A minor or by any person professing to be serving as temporary custodian of such minor at the request of a parent or guardian of such minor for the examination and treatment of (i) any laceration, fracture or other traumatic injury suffered by such minor, or (ii) any symptom, disease or pathology which may, in the judgement of the attending personnel preparing such treatment, if untreated, reasonably be expected to threaten the health or life of such minor; provided, however, that the consent given shall be effective only after reasonable efforts shall have been made to obtain the consent of the parent or guardian of said minor; or 
   6. A relative caregiver acting pursuant to an Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors.
3. Effect of consent.  Any consent given by or for a minor pursuant to the authority of any provision of this chapter shall be valid and effective for all purposes, and, notwithstanding any misrepresentation as to age, status as parent, guardian or custodian or as to marital status, made to any practitioner, hospital or clinic for purposes of inducing the furnishing of health care to such minor, shall bind such minor, his or her parent, spouse, heirs, executors and administrators and shall not be subject to subsequent disaffirmance by reason of minority.
4. Liability of persons responsible for medical care.  Nothing contained in this section shall be construed to relieve any practitioner, hospital, clinic or their agents or employees from liability for negligence in diagnosis, care and treatment or for the performance of any procedure not reasonably required for the preservation of life or health.

(13 Del. C. 1953, § 707; 54 Del. Laws, c. 386; 58 Del. Laws, c. 272; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 187, §§ 1-5.)

§ 708. Affidavit of Establishment of Power to Consent to Medical Treatment of Minors.

1. There is created an Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors. The affidavit shall include, at a minimum, the name and date of birth of the minor; a statement signed by the caregiver that the caregiver is 18 years of age or older and that the minor resides with the caregiver; the names and signatures of the parents, legal custodian or guardian of the minor indicating their approval of the caregiver's power or, if a parent, custodian or guardian of the minor is unavailable, a statement of reasonable effort made by the caregiver to locate the parent, custodian or guardian based on criteria set forth in the regulations; the name of the caregiver; relationship of the caregiver to the minor documented by proof as defined by regulation; and the dated signature of the caregiver. The signature of the caregiver shall be notarized.
2. The affidavit is valid for 1 year unless the minor no longer resides in the caregiver's home or a parent, custodian or guardian revokes his or her approval. If a parent, custodian or guardian revokes approval, the caregiver shall notify any health care provider or health service plans with which the minor has been involved through the caregiver.
3. A caregiver must present a completed Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minor when seeking medical treatment for a minor
4. The decision of a relative caregiver to consent to or to refuse medical treatment for a minor shall be superseded by a decision of a parent, legal custodian or guardian of the minor.
5. No person who relies in good faith upon a fully executed Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors in providing medical treatment shall be subject to criminal or civil liability or to professional disciplinary action because of the reliance. This immunity applies even if medical treatment is provided to a minor in contravention of a decision of a parent, legal custodian or guardian of the minor who signed the affidavit if the person providing care has no actual knowledge of the decision of the parent, or legal custodian or guardian
6. The decision of a relative caregiver, based upon an Affidavit of Establishment Power to Relative Caregivers to Consent to Medical Treatment of Minors, shall be honored by a health care facility or practitioner unless the health care facility or practitioner has actual knowledge that a parent, legal custodian or guardian of a minor has made a contravening decision to consent to or to refuse medical treatment for the minor
7. A person who knowingly makes a false statement in an affidavit under this section shall be subject to a civil penalty of $1,000 per child. Justices of the Peace shall have jurisdiction of these cases.
8. The Department of Health and Social Services is authorized to promulgate regulations to implement this section.

(72 Del. Laws, c. 187, § 7.)