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Education
Instrument: Voluntary grant of authority / Educational representative appointment
What is it for?
A student 18 years or older may “may authorize an adult agent to exercise rights through execution of a power of attorney or a standard voluntary grant of authority form published by the Department of Education.” 14-926 Del. Admin. Code § 20.1.2. The standard voluntary grant of authority form results in the appointment of an educational representative. Alternatively, the educational representative may be appointed by the student’s IEP Team if it determines that an adult student is incapable of providing informed consent and appoint an educational representative based on that determination.
What does it do?
The appointment of an educational representative, either through a student’s voluntary grant of authority or an IEP Team’s determination, allows that representative to make educational decisions on the student’s behalf. These decisions include all the decisions parents of minors are empowered to make under the Individuals with Disabilities Education Act (IDEA) with regard to evaluation and assessment; special education programming, including specialized instruction and related services; placement; Individualized Education Program (IEP) content and meetings; procedural safeguards, including notices; educational records; administrative complaints and due process proceedings; and consent, modification, or waiver of rights.
How does one make it?
The student and the educational representative must both sign and date the Delaware Department of Education’s prescribed voluntary grant of authority form. Both signatures must be witnessed by someone other than the representative.
For an IEP Team to determine a student is unable to provide informed consent for educational decisions, at least where “capacity is uncertain,” a school psychologist “familiar with the child” (i.e. has conducted a recent in-person evaluation of the child) must attend the IEP Team meeting to participate in the Team’s deliberations. 14-926 Del. Admin. Code § 20.1.3. The IEP may, but need not, authorize an evaluation of the child’s capacity, and may also refer to other sources of information about the student.
When does it come into effect?
Presumably, when the student’s request is approved by the local educational authority. For IEP Team determinations, Delaware’s regulations indicate that the IEP Team itself is empowered to make the appointment if the representative is a biological or adoptive parent or relative, but must request an appointment from the Department of Education if such person is not available. 14-926 Del. Admin. Code § 20.1.3.
How long does it last?
A voluntary grant of authority is valid for one year. An educational representative appointment by an IEP Team lasts for the duration of the student’s IDEA eligibility but must be reviewed at each annual IEP Team meeting.
How does one end it?
A student may take back the responsibility for special education decisions at any time, by written or oral notice to a principal, vice principal, or their designee.
What does an example look like?
The Delaware Department of Education has developed a form that is available here.
What else should one know?
Also, students 18 years or older may “may authorize an adult agent to exercise rights through execution of a power of attorney or a standard voluntary grant of authority form published by the Department of Education.” 14-926 Del. Admin. Code § 20.1.2.
Last updated April 2021
Health
Instrument: Power of attorney for health care (POAHC)
What is it for?
“Power of attorney for health care” allows an adult (the “declarant”) who is “mentally competent” to designate an agent to make health-care decisions for the declarant. In Delaware, the POAHC is referred to as a type of “advance health-care directive” (AHCD). Note that Delaware’s statutory form for establishing a POAHC is referred to as an advanced health-care directive (AHCD) form. However, only Part 1 of that form establishes a POAHC, while Part 2 of that form only covers end-of-life medical decisions.
What does it do?
The POAHC allows an adult to name another individual as an “agent” to make health care decisions for him or her if he or she becomes incapable of making health-care decisions. It also enables you to name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you.
Health-care decisions that may be delegated to an agent include: selection and discharge of health-care providers and institutions; acceptance or refusal of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care. An agent must make a health-care decision to treat, withdraw or withhold treatment on behalf of the patient after consultation with the attending physician or with the person who made the incapacity determination triggering the agent’s authority, and in accordance with the principal’s individual instructions, if any, and other wishes to the extent known to the agent. Del. Code Ann. § 2503(f). Health-care providers are obligated to comply with a health-care decision made by agent pursuant to a POAHC. Del. Code Ann. § 2508.
How does one make it?
The POAHC and other AHCDs must be in writing, signed by the declarant or by another person in the declarant’s presence and at the declarant’s expressed direction, dated, and signed in the presence of 2 or more adult witnesses neither of whom may be related to the declarant by blood, marriage or adoption or certain other potential conflicts of interest. Del. Code Ann. § 2503.
When does it come into effect?
An agent’s authority becomes effective only when the principal’s attending physician determines that he or she lacks the capacity to make health-care decisions. The incapacity determination must be made by the primary physician or other physician(s) as specified in a written. Del. Code Ann. § 2503(e). “Capacity” is defined as an individual’s ability to understand the significant benefits, risks and alternatives to proposed health care and to make and communicate a health-care decision.
How long does it last?
Presumably, until the declarant dies or revokes the POAHC.
How does one end it?
A declarant who is mentally competent may revoke all or part of a POAHC or other AHCD either through a signed writing or in any manner that communicates an intent to revoke done in the presence of 2 competent persons, 1 of whom is a health-care provider. If the revocation is not done in writing, then the witnesses must memorialize it in a writing signed and dated by them that must be included in the declarant’s medical record. A subsequent POAHC automatically revokes a prior one. Del. Code Ann. § 2504.
What does an example look like?
The Committee on Law and the Elderly of the Delaware Bar Association has developed an “advance health-care directive” form that has been and approved for use by the Office of the Attorney General of the State of Delaware pursuant to the optional statutory form described at Del. Code Ann. § 2505. Part 1 of the form establishes a POAHC. It is available here.
What else should one know?
A guardian shall comply with the instructions of the adult person with a disability and may not revoke the person’s advance health-care directive unless the appointing court expressly so authorizes. Del. Code Ann. § 2506.
Last updated April 2021
General
Instrument #1: Supported decision-making agreement (SDMA)
What is it for?
The supported decision-making agreement (SDMA) allows a person aged 18 years or older (the “principal”) to access assistance in gathering and assessing information, making informed decisions, and communicating decisions if they would benefit from decision-making assistance. Del. Code Ann. § 9402A. SDMAs may cover health-care and personal affairs (such as obtaining, scheduling, and coordinating health and support services) as well as financial affairs (such as managing income and assets and its use for clothing, support, care, comfort, education, shelter, and payments). Del. Code Ann. § 9403A.
What does it do?
The SDMA gives supporters legal status to be with the adult and participate in discussions with others when the adult is making decisions or attempting to obtain information and enables supporters to assist in making and communicating decisions for the adult but not substitute as the decision maker for that adult. Del. Code Ann. § 9402A. A decision or request made or communicated with the assistance of a supporter pursuant to a valid SDMA must be respected by third parties on the same basis as a decision or request of the principal. Del. Code Ann. § 9407A.
Supporters may provide the following kinds of assistance:
- Assist the principal in understanding information, options, responsibilities, and consequences of the principal’s life decisions, including those decisions relating to the principal’s affairs or support services.
- Help the principal access, obtain, and understand any information that is relevant to any given life decision, including medical, psychological, financial, or educational decisions, or any treatment records or records necessary to manage the principal’s affairs or support services.
- Assist the principal in finding, obtaining, making appointments for, and implementing the principal’s support services or plans for support services.
- Help the principal monitor information about the principal’s affairs or support services, including keeping track of future necessary or recommended services.
- Ascertain the wishes and decisions of the principal, assist in communicating those wishes and decisions to other persons, and advocate to ensure that the wishes and decisions of the principal are implemented. Del. Code Ann. § 9406A.
Persons may not be supporters if they have an employment relationship with the principal, are directly providing paid support services to the principal, or are named in an order of protection from abuse or are the subject of a civil or criminal order prohibiting contact with the principal. Del. Code Ann. § 9406A.
How does one make it?
The principal must enter into an SDMA voluntarily and without coercion or undue influence, and the principal must also understand the nature and effect of the agreement. The SDMA must designate at least one supporter and describe the decisions that the supporter is authorized and not authorized to assist with. The SDMA must be in a writing that contains all the elements of the Department of Health and Social Services’ form, be dated, and also be witnessed by two individuals who are neither supporters nor employees of supporters and who understand the principal’s mode of communication. Last, each supporter must sign a declaration stating the supporter’s relationship to the principal, the supporter’s willingness to act as a supporter, the supporter’s acknowledgement of the duties of a supporter. Del. Code Ann. § 9405A.
When does it come into effect?
Presumably, as soon as the SDMA is executed.
How long does it last?
Presumably, until the principal dies, either the principal or supporter revokes the SDMA, or a court terminates the SDMA in whole or in part.
How does one end it?
A principal or a supporter may revoke an SDMA at any time in writing and with notice to the other parties to the agreement. Also, an SDMA may be prospectively limited or abrogated, in whole or part, by a judicial determination that the principal lacks the capacity to engage in the making of specific decisions covered by the agreement despite the assistance of a supporter. Del. Code Ann. § 9405A.
What does an example look like?
The Delaware Department of Health and Social Services has developed a form available here.
What else should one know?
Execution of an SDMA may not be used as evidence of incapacity and does not preclude the ability of the adult who has entered into such an agreement to act independently of the agreement. Del. Code Ann. § 9404A.
Instrument #2: Durable personal power of attorney (DPPOA)
What is it for?
The DPPOA allows any person age 18 or older (the “principal”) to appoint one or more agents to make property or certain other decisions on his or her behalf. The DPPOA does not cover health care decisions.
What does it do?
A validly executed DPPOA transfers property decision-making authority from the principal to the agent.
An agent has authority to conduct any lawful act with respect to the principal’s property, including contracting or suing on the principal’s behalf or accessing communications intended for the principal. Del. Code tit. 12 §§ 49A-203 & 212.
It is “durable” because it survives the principal’s incapacity, although the document must contain specific language indicating the principal’s intent for the DPPOA an incapacity finding. Del. Code tit. 12 § 49A-104. It is “personal” because it relates only to personal assets and interests, not routine business matters that are specific event targeted and short lived.
If the DPPOA designates more than one agent, it may indicate that they are “concurrent” agents who may exercise their authority independently or “joint” agents who must do so jointly. Del. Code tit. 12 § 49A-111. Third parties are generally obligated to accept a duly executed DPPOA with few exceptions, such as actual knowledge that the DPPOA had been terminated, and may be liable for damages if they fail to do so. Del. Code tit. 12 § 49A-120.
How does one make it?
The DPPOA must be (1) in writing, (2) signed by the principal (or by another person in the principal’s presence and at the principal’s express direction), (3) dated, (4) signed in the presence of a notarial officers, and (5) signed in the presence of one adult witness who is neither (a) related to the principal by blood, marriage, or adoption; nor (b) entitled to any portion of the principal’s property. Del. Code. Ann. § 49-105(a).
This section also includes an optional “Notice” that may be included in the DPPOA. If it is not, then the agent will have the burden of proof to show that the DPPOA was validly executed, as well as a mandatory “Agent’s Certification” that is required for the agent to exercise his or her authority.
When does it come into effect?
The DPPOA may come into effect either immediately, upon the incapacity of the principal, or upon the occurrence of another future event or contingency. If the PPOA comes into effect based on the principal’s incapacity or another future event, it may be called a “springing” DPPOA. The DPPOA may specify who may determine the principal to be incapacitated, and if not, then the determination will be made only by a physician, Court of Chancery, or another court. Del. Code. Ann. § 49- 109.
How long does it last?
The DPPOA ends when the principal either dies or revokes the DPPOA. It also ends if the agent either dies, resigns, or becomes incapacitated. The DPPOA also ends if a terminating event described in the DPPOA itself occurs, or if the purpose of the DPPOA is accomplished. Last, the Court of Chancery may also revoke the DPPOA. Del. Code. Ann. § 49- 110.
Appointment of a guardian of person or property terminates all previous DPPOAs if an agent’s powers overlap with those of the court-appointed guardian. Del. Code tit. 12 § 49A-108.
How does one end it?
Delaware does not specifically describe the manner in which the principal may revoke the DPPOA.
What does an example look like?
Delaware’s statutory DPPOA form is located here, at Del. Code tit. 12 § 49A-301.
What else should one know?
Students aged 18 years or older may also use a DPPOA to authorize an adult to make educational decisions on their behalf. 14-926 Del. Admin. Code § 20.1.
Delaware’s DPPOA is not based on the Uniform Power of Attorney Act.
Last updated April 2021