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Guardianship of minors

Compliance Monitor, April 1, 2005

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Q: We received a phone call from a five-month-old patient's aunt. The patient's mother "left" the child with the aunt. The family does not know where the mother is or whether she will return. In the meantime, the patient needs his six-month physical and immunizations. Can the aunt bring in the child even though she is not the legal guardian? The aunt is contacting a Medicaid social worker at this time.

A: The answer is . . . it depends. The fact scenario you've presented is an all-too-common occurrence that seems to happen to pediatric providers on a fairly regular basis. The answer to the question depends, in large part, on the law of the state in which the minor child is located.

The state in which the child in the scenario is located will most likely have a statute(s) that specifically identifies who may consent to medical treatment for a minor in the event that the legal guardian is not able to be located. The statute(s) will most likely list--in order of priority--the person who has legal authority to consent to treatment in the absence of the legal guardian.

For example, a step-parent or a grandparent of the minor in question may be given priority over an adult aunt or uncle. The statute(s) may also make a distinction between ordinary and necessary medical care, such as the type described in the question, and more intensive medical services, such as surgery.

This question was answered by William P. Dillon, Esq., a partner in the Law Firm of McMorrow & Dillon, P.A., in Naples, FL. Mr. Dillon concentrates his practice on the representation of healthcare providers.

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