MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary, Division A
By: Senator(s) Parker
AN ACT TO AMEND SECTION 93-31-3, MISSISSIPPI CODE OF 1972, TO CLARIFY THE CIRCUMSTANCES UNDER WHICH BOTH PARENTS MUST EXECUTE A TEMPORARY POWER OF ATTORNEY TO BE EFFECTIVE UNDER THE ACT; TO AMEND SECTION 93-31-5, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT A REASON FOR THE EXECUTION OF THE POWER OF ATTORNEY BE STATED; TO REQUIRE AN AFFIDAVIT OF STATUTORY COMPLIANCE BY THE FACILITATING AGENCY; TO CONFORM THE ACKNOWLEDGEMENT CLAUSE AND TO CREATE A STATUTORILY SUFFICIENT FORM FOR REVOCATION OF A POWER OF ATTORNEY GRANTED UNDER THE ACT; TO REQUIRE AN AFFIDAVIT FROM A CUSTODIAL PARENT WHO ALLEGES UNAVAILABILITY OF THE NONCUSTODIAL PARENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-31-3, Mississippi Code of 1972, is amended as follows:
93-31-3. (1) (a) A parent or legal custodian of a child, by means of a properly executed power of attorney as provided in Section 93-31-5, may delegate to another willing person or persons as attorney-in-fact any of the powers regarding the care and custody of the child other than the following:
(i) The power to consent to marriage or adoption of the child;
(ii) The performance or inducement of an abortion on or for the child; or
(iii) The termination of parental rights to the child.
(b) A delegation of powers under this section does not:
(i) Change or modify any parental or legal rights, obligations, or authority established by an existing court order;
(ii) Deprive any custodial or noncustodial parent or legal guardian of any parental or legal rights, obligations, or authority regarding the custody, visitation, or support of the child; or
(iii) Affect a court's ability to determine the best interests of a child.
(c) If both parents are
living and * * * neither
parent's parental rights have been terminated, both parents must execute
the power of attorney. If a noncustodial parent is absent or unknown, the
custodial parent must complete the affidavit contemplated under Section 93-31-5
and attach it to the power of attorney.
(d) A power of attorney under this chapter must be facilitated by either a child welfare agency that is licensed to place children for adoption and that is operating under the Safe Families for Children model or another charitable organization that is operating under the Safe Families for Children model. A full criminal history and child abuse and neglect background check must be conducted on any person who is not a grandparent, aunt, uncle, or sibling of the child if the person is:
(i) Designated or proposed to be designated as the attorney-in-fact; or
(ii) Is a person over the age of fifteen (15) who resides in the home of the designated attorney-in-fact.
(2) A power of attorney executed under this chapter shall not be used for the sole purposes of enrolling a child in a school to participate in the academic or interscholastic athletic programs provided by that school or for any other unlawful purposes, except as may be permitted by the federal Every Student Succeeds Act (Public Law 114-95).
(3) The parent or legal
custodian of the child has the authority to revoke or withdraw the power of
attorney authorized by this section at any time. Upon the termination,
expiration, or revocation of the power of attorney, the child must be returned
to the custody of the parent or legal custodian * * *.
(4) Until the authority expires or is revoked or withdrawn by the parent or legal custodian, the attorney-in-fact shall exercise parental or legal authority on a continuous basis without compensation for the duration of the power of attorney.
(5) The execution of a power of attorney by a parent or legal custodian does not, in the absence of other evidence, constitute abandonment, desertion, abuse, neglect, or any evidence of unfitness as a parent unless the parent or legal custodian fails to take custody of the child or execute a new power of attorney after the one-year time limit, or after a longer time period as allowed for a serving parent, has elapsed. Nothing in this subsection prevents the Department of Human Services or law enforcement from investigating allegations of abuse, abandonment, desertion, neglect or other mistreatment of a child.
(6) When the custody of a child is transferred by a power of attorney under this chapter, the child is not considered to have been placed in foster care and the attorney-in-fact will not be subject to any of the requirements or licensing regulations for foster care or other regulations relating to out-of-home care for children and will not be subject to any statutes or regulations dealing with the licensing or regulation of foster care homes.
(7) (a) "Serving parent" means a parent who is a member of the Armed Forces of the United States, including any reserve component thereof, or the National Oceanic and Atmospheric Administration Commissioned Officer Corps or the Public Health Service of the United States Department of Health and Human Services detailed by proper authority for duty with the Armed Forces of the United States, or who is required to enter or serve in the active military service of the United States under a call or order of the President of the United States or to serve on state active duty.
(b) A serving parent may delegate the powers designated in subsection (1) of this section for longer than one (1) year if on active-duty service or if scheduled to be on active-duty service. The term of delegation, however, may not exceed the term of active-duty service plus thirty (30) days.
(8) (a) A power of attorney under this chapter must be filed in the youth court of the county where the minor child or children reside at the time the form is completed, and the clerk of the youth court will not impose or collect a filing fee. The filing is informational only, and no judicial intervention shall result at the time of filing.
(b) The power of attorney must be entered into the Mississippi Youth Court Information Delivery System (MYCIDS) under Section 43-21-351, and must be administratively reviewed by the youth court judge or referee, or a person designated by the youth court judge or referee, to ensure the safety of the child or children who are the subjects of the power of attorney one (1) year after the date of execution.
SECTION 2. Section 93-31-5, Mississippi Code of 1972, is amended as follows:
93-31-5. (1) The following statutory form of power of attorney to delegate parental or legal authority as authorized by Section 93-31-3 is legally sufficient:
Statutory Form for Power of Attorney to
Delegate Parental or Legal Custodian Powers
1. "I certify that I am the parent or legal custodian of:
______________________________ ___________________
(Full name of minor child) (Date of birth)
______________________________ ___________________
(Full name of minor child) (Date of birth)
______________________________ ___________________
(Full name of minor child) (Date of birth)
who is/are minor children.
2. I designate as the attorney-in-fact for each minor child named above: ___________________________________________________
(Full name of attorney-in-fact)
__________________________________________________________________
(Street address, city, state and zip code of attorney-in-fact)
__________________________________________________________________
(Home phone, work phone and cell phone of attorney-in-fact)
as the attorney-in-fact of each minor child named above.
3. [Complete either Section 3(a) or 3(b)].
(a) I delegate to the attorney-in-fact all of my power and authority regarding the care, custody and property of each minor child named above, including, but not limited to, the right to enroll the child in school, inspect and obtain copies of education records and other records concerning the child, the right to attend school activities and other functions concerning the child, and the right to give or withhold any consent or waiver with respect to school activities, medical and dental treatment, and any other activity, function or treatment that may concern the child. This delegation shall not include the power or authority to consent to marriage or adoption of the child, the performance or inducement of an abortion on or for the child, or the termination of parental rights to the child.
OR
(b) I delegate to the attorney-in-fact the following specific powers and responsibilities (write in):
__________________________________________________________________
[If Section 3(b) is completed, Section 3(a) does not apply.]
This delegation shall not include the power or authority to consent to: marriage or adoption of the child, performing or inducing an abortion on or for the child, or the termination of parental rights to the child.
(c) The reason or reasons for this transfer of custody is as follows: __________________________________________________
__________________________________________________________________
[Complete either 4(a) or 4(b)]
4. (a) This power of attorney is effective for a period not to exceed one (1) year, beginning, _____________, 20___, and ending _____________, 20____. I reserve the right to revoke this authority at any time.
OR
[Complete either 4(a) or 4(b)]
(b) I am a serving parent as defined in Section 93-31-3, Mississippi Code of 1972. My active-duty service is scheduled to begin on _____________, 20___, and is estimated to end on ______________, 20____. I reserve the right to revoke this authority at any time. I acknowledge that in no event may this delegation of power last more than one (1) year or the term of my active duty plus thirty (30) days, whichever is longer.
By: _________________________________
(Parent/Legal Custodian signature)
5. I hereby accept my designation as attorney-in-fact for the minor child/children specified in this power of attorney.
_________________________________
(Attorney-in-fact signature)
6. AFFIDAVIT OF FACILITATING AGENCY UNDER SECTION 93-31-3(1)(d), Mississippi Code of 1972
I, _____________________________________ of __________
_____________(Agency), do hereby certify that I have properly vetted the proposed designated attorney-in-fact as required under Section 93-31-3(1)(d), Mississippi Code of 1972, and find no criminal or child abuse or neglect history.
____________________________________
(Agency representative signature)
____________________________________
Name of facilitating agency
State of _________________________
County of ________________________
ACKNOWLEDGEMENT
Before me, the undersigned, a Notary Public, in and for said county and state on this ____ day of _____________, 20____, personally appeared _____________________________________________
_______________________________(Name of facilitating agency and person signing as facilitator, __________________________________ (Name of Parent/Legal Custodian) and _______________________(Name of Attorney-in-fact), known to me to be the persons who executed this instrument and who acknowledged to me that each executed the same as his or her free and voluntary act and deed for the uses and purposes set forth in the instrument.
Witness my hand and official seal the day and year above written.
_______________________________
(Signature of notarial officer)
(Seal, if any)
_________________________
(Title and Rank)
My commission expires:________________"
7. If the custodial parent alleges that the noncustodial parent is absent, unknown, or that the location of the noncustodial parent is unknown, an affidavit must be completed and
attached to the power of attorney. The following statutory form is sufficient:
Affidavit of Custodial Parent
STATE OF _________________
COUNTY OF ________________
I hereby certify that I am the custodial parent of the child(ren)_who are the subject of the power of sttorney to which this affidavit is attached. I further certify that the location of the noncustodial parent, ____________________ is unknown to me or that the identity of the father is unknown to me (insert here if the father is unknown)___________ or that the noncustodial parent is unavailable (state here the reason unavailable): ____________________________________________.
SO SWORN, this the ______ day of ___________, 20____ ___________________________________
Custodial Parent
SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority in and for the aforementioned jurisdiction, the within named person who first presented proof of identity.
THIS, the __ day of _____________, 20________.
__________________________________
NOTARY PUBLIC
My commission expires: __________________________
(2) A power of attorney,
affidavit of facilitating agency, and affidavit of custodial parent that
substantially * * * conform to the forms set forth in this
section * * *
are legally sufficient if * * * properly completed and
acknowledged.
(3) A revocation of a power of attorney under this chapter must be filed with the youth court where the original power of attorney was filed, and the clerk of the youth court shall not impose or collect a filing fee. The following statutory form is sufficient to revoke a power of attorney to delegate parental or legal custodial powers that was granted under Section 93-31-3:
Statutory Form for Revocation of
Power of Attorney to Delegate Parental or
Legal Custodial Powers
"1. I certify that I am the parent or legal custodian of:
______________________________ ___________________
(Full name of minor child) (Date of birth)
______________________________ ___________________
(Full name of minor child) (Date of birth)
______________________________ ___________________
(Full name of minor child) (Date of birth)
who is/are minor children.
2. On the ____ day of _______________, 20_____, I designated as the attorney-in-fact of each minor child named above:
__________________________________________________________________
(Full name of attorney-in-fact and DOB)
__________________________________________________________________
(Street address, city, state and zip code of attorney-in-fact)
3. I hereby certify that I am revoking said Power of Attorney to Delegate Parental or Legal Custodial Powers and am requesting that my child or children named above be immediately returned to my legal and physical care, custody and control and that I resume all legal rights and responsibilities associated with my child or children.
ACKNOWLEDGEMENT
Before me, the undersigned, a Notary Public, in and for said county and state on this ____ day of _____________, 20____, personally appeared _____________________________________________
_______________________________(Name of Parent/Legal Custodian), known to me to be the person who executed this instrument and who acknowledged to me that he or she executed this instrument as his or her free and voluntary act and deed for the uses and purposes set forth in the instrument.
Witness my hand and official seal the day and year above written.
_______________________________
(Signature of notarial officer)
(Seal, if any)
_________________________
(Title and Rank)
My commission expires:________________"
SECTION 3. This act shall take effect and be in force from and after July 1, 2019.