Finance
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Education
Instrument: Educational Agent or Representative
What is it for?
The “educational agent” or “educational representative” makes decisions about an adult student’s individualized education program on the student’s behalf. An agent is chosen by the student while a representative is chosen by the local education authority for the student.
What does it do?
By delegating rights to an educational agent, or by having an educational representative appointed, adult students’ authority to consent to special education services are transferred to another adult. An agent’s or representative’s authority is limited to consenting to educational services, and does not include the authority to remove an adult student from educational services.
How does one make it?
An adult student can designate an educational agent by using either a “delegation of rights” form developed by the South Carolina Department of Education or a power of attorney for special education. S.C. Code Ann. § 59-33-330.
An educational representative can also be identified by the local educational authority on an adult student’s behalf. A representative may be appointed if an adult student’s physician, nurse practitioner, physician’s assistant, psychologist, or psychiatrist examines the student and certifies in writing that the student “is incapable of communicating, with or without reasonable accommodations, his wishes, interests, or preferences with respect to his educational program.” The student must be notified in writing of the certification before the appointment is made. S.C. Code Ann. § 59-33-340.
When does it come into effect?
Presumably, an educational agent or representative’s authority begins immediately. An educational representative appointment can occur as early as 60 days before the student turns 18 years old. S.C. Code Ann. § 59-33-340.
How long does it last?
Unless a court orders the representative’s authority terminated, the authority of an educational representative continues until a student either challenges the designation or becomes ineligible for special education.
Presumably, an agent’s authority must be ended similarly, or if the student revokes the delegation.
How does one end it?
A student may challenge an educational representative appointment in writing.
What does an example look like?
South Carolina’s Protection and Advocacy for Persons with Disabilities, Inc. provides a form to appoint an agent here.
What else should one know?
Students may also choose to delegate their rights via a power of attorney. S.C. Code Ann. § 59-33-330.
Last updated June 2022
Health
Instrument: Health Care Power of Attorney (HCPOA)
What is it for?
A “health care power of attorney” (HCPOA) allows an adult (the “principal”) to choose one or more others (the “agent(s)”) to make health care decisions on the principal’s behalf in the event of their incapacity.
What does it do?
The HCPOA grants to the agent authority to make decisions for the principal regarding any procedure to diagnose or treat a human disease, ailment, defect, abnormality, or complaint, whether of physical or mental origin, including the provision of intermediate or skilled nursing care; services for the rehabilitation of injured, disabled, or sick persons; and placement in or removal from a facility that provides these forms of care. S.C. Code Ann. § 62-5-501(3).
While the principal may limit the agent’s authority in certain respects, unless the HCPOA states otherwise, the agent may:
(a) consent, refuse, or withdraw consent to any and all types of medical care, treatment, surgical procedures, diagnostic procedures, medication, and the use of mechanical or other procedures, including life-sustaining treatment;
(b) authorize, or refuse to authorize, any medication or procedure intended to relieve pain, even though that use may lead to physical damage, addiction, or hasten the moment of, but not intentionally cause, the principal’s death;
(c) authorize the principal’s admission to or discharge, even against medical advice, from a hospital, nursing care facility, or similar facility or service; and
(d) take actions necessary to making, documenting, and assuring implementation of decisions concerning my health care, including granting a waiver or release from liability, signing any documents relating to refusals of treatment or the leaving of a facility against medical advice, and pursuing any legal action in the principal’s name. S.C. Code Ann. § 62-5-504.
The HCPOA also empowers an agent to access to the principal’s medical records and information to the same extent that the principal would have access, including the right to disclose the contents to others; contract on the principal’s behalf for placement in a health care or nursing care facility or for health care related services, without the agent incurring personal financial liability for the contract; hire and fire medical, social service, and other support personnel responsible for the principal’s care; and have the same health care facility or nursing care facility visitation rights and privileges of the principal as are permitted to immediate family members or spouses. S.C. Code Ann. § 62-5-505.
In exercising this authority, the agent must follow the principal’s desires as stated in the HCPOA or otherwise expressed by the principal or known to the agent and also attempt to discuss proposed decisions with the principal’s to determine their desires. If an agent cannot determine the principal’s preferences, then the agent may make decisions based on the agent’s determination of the principal’s best interests. S.C. Code Ann. § 62-5-509.
Health care providers generally must follow the agent’s decisions to the same extent as if they were made by the principal. S.C. Code Ann. § 62-5-508.
How does one make it?
The HCPOA must state the agent’s name and address and also be dated and be signed either by the principal or in the principal’s name by another person at the principal’s discretion and in their presence. It must also be signed by at least two eligible adult witnesses and notarized. S.C. Code Ann. § 62-5-517.
When does it come into effect?
The agent’s authority generally becomes effective upon, and only during a period of the principal’s “mental incompetence.” S.C. Code Ann. § 62-5-502(d). However, the agent becomes able to give a release of medical records under HIPAA immediately upon execution of the HCPOA. S.C. Code Ann. § 62-5-504.
For the agent’s authority to become effective, generally two licensed physicians must determine that the principal is “unable to consent,” which means unable to appreciate the nature and implications of their condition and proposed health care, to make a reasonable decision concerning the proposed health care, or to communicate that decision unambiguously. Such a determination may also be made by one health care professional in the event of an emergency. S.C. Code Ann. § 44-66-20(8). The principal may be determined mentally incompetent either with regard to all health care decisions or only some. S.C. Code Ann. § 62-5-502(d).
How long does it last?
An HCPOA is durable, and lasts until the principal dies or revokes the HCPOA, or the agent withdraws, dies, or a court terminates their authority. S.C. Code Ann. § 62-5-502.
How does one end it?
The principal may revoke the HCPOA and the agent’s authority at any time by informing either the agent or the health care provider orally or in writing. The principal may also revoke the HCPOA by executing either a subsequent HCPOA or a subsequent durable power of attorney that specifically states that the principal intends to revoke the prior HCPOA. S.C. Code Ann. § 62-5-512.
What does an example look like?
An optional HCPOA form is provided at S.C. Code Ann. § 62-5-504.
What else should one know?
A person may not be required to sign an HCPOA as a condition for coverage under an insurance contract or for receiving medical treatment or as a condition of admission to a health care or nursing care facility. S.C. Code Ann. § 62-5-513(b).
Last updated June 2022
General
Instrument: Power of Attorney (POA)
What is it for?
A “power of attorney” (POA) allows an adult (the “principal”) to appoint one or more others (the “agent(s)”) to make decisions regarding the principal’s property and personal affairs on the principal’s behalf. An adult student may also use a POA to appoint an agent to make educational decisions on their behalf. S.C. Code Ann. § 59-33-330.
What does it do?
A POA authorizes an agent to make a wide range of decisions regarding the management of the principal’s property and personal affairs. In addition to financial affairs, a POA may either be limited to or include the power to make health care or educational decisions on behalf of the principal.
In doing so, the agent must act in good faith, only within the scope of the authority granted in the POA, and in accordance with the principal’s known expectations and in the principal’s best interest. S.C. Code Ann. § 62-8-114.
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the POA’s validity. S.C. Code Ann. § 62-8-120. An agent’s certification form is provided at S.C. Code Ann. § 62-8-119.
How does one make it?
A POA must be signed by the principal or in the principal’s presence by another individual directed by the principal to sign the principal’s name. It must also be both witnessed by two adults and notarized. S.C. Code Ann. § 62-8-105.
When does it come into effect?
The agent’s authority either becomes effective immediately or upon the occurrence of a future event, such as the principal’s incapacity. In the latter case, which is sometimes referred to as a “springing” POA, the principal may specify one or more persons to determine in writing whether the event has occurred. S.C. Code Ann. § 62-8-109(a). In either case, the POA must be recorded with the register of deeds in a county where either the principal resides or the principal’s property before the agent may use their authority. S.C. Code Ann. § 62-8-109(c).
If a POA becomes effective upon the principal’s “incapacity” and the principal does not identify a person in the POA itself who will determine the principal’s incapacity, then a physician or licensed psychologist must do so. S.C. Code Ann. § 62-8-109(a)(2)(A). “Incapacity” means the principal is unable to manage their property or business affairs due to an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. S.C. Code Ann. § 62-8-102(5)(A).
How long does it last?
The POA lasts either until the principal revokes it or until a date or an event specified in the instrument. S.C. Code Ann. § 62-8-109. A POA is generally considered “durable,” which means the agent’s authority continues after the principal’s incapacity, unless it expressly states otherwise. S.C. Code Ann. § 62-8-104.
A POA ends if the principal dies or revokes it, if the POA’s purpose is accomplished, or if the agent resigns, dies, becomes incapacitated or has their authority revoked and the POA does not name a successor agent. S.C. Code Ann. § 62-8-110.
How does one end it?
Presumably, the principal can revoke the POA by destroying it and/or by notifying the agent of the principal’s intent to revoke. A subsequent POA does not automatically revoke a prior POA unless it specifically states that the prior POA is revoked. S.C. Code Ann. § 62-8-110(f).
What does an example look like?
South Carolina does not provide a statutory POA form.
What else should one know?
South Carolina’s DPOA is based on the Uniform Power of Attorney Act.
Last updated June 2022