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Education
Instrument: Supported decision-making agreement (SDMA)
What is it for?
The educational SDMA helps create a network of individuals to help a student inform their educational decisions related to their Individualized Education Program (IEP) once they reach the age of majority. D.C. Mun. Regs. tit. 5, § E3034.3.
What does it do?
The educational SDMA lists individuals to assist the student with making educational decisions and grants permission for those individuals to have access to listed educational documents. D.C. Mun. Regs. tit. 5, § E3034.3
The student’s decisional choice shall prevail any time that a disagreement exists between the student and the other adult providing support in this manner. D.C. Mun. Regs. tit. 5, § E3034.3.
How does one make it?
Adult students in special education who want help, can make an SDMA with a Supported Decision-Making form from D.C. Public Schools or the Office of State Superintendent of Education (OSSE).
When does it come into effect?
The educational SDMA comes into effect immediately upon execution. D.C. Mun. Regs. tit. 5, § E3034.3
How long does it last?
The SDMA lasts until the student is no longer being educated in Washington, DC, but the student can remove a listed individual from their SDMA and revoke their access to the student’s educational documents at any time. D.C. Mun. Regs. tit. 5, § E3034.3.
How does one end it?
The student retains the ability to revoke the SDMA at any time, but the process by which a student revokes the SDMA is unclear. D.C. Mun. Regs. tit. 5, § E3034.3.
What does an example look like?
A sample form is provided by D.C. Public Schools here.
What else should one know?
Note that OSSE may also appoint an educational representative (ER) for adult students determined “to not have the ability to provide informed consent regarding educational decisions.” The OSSE may appoint an ER if requested in writing by the student’s parent, legal guardian, another interested adult, and if two different licensed professionals certify that the student requires such. D.C. Mun. Regs. tit. 5, §§ E3035.3-.15. The certifications will not be construed to be a finding of incompetence in any other proceeding involving the adult students’ capacity to make non-educational decisions.
Last updated July 2022
Health
Instrument: Durable Power of Attorney for Health Care (DPOAHC)
What is it for?
A “durable power of attorney for health care” (DPOAHC) allows an adult (the “principal”) to designate another (the “attorney in fact”) to make health-care decisions on behalf of the principal when the principal is incapacitated.
What does it do?
A DPOAHC grants the attorney in fact all of the rights, powers, and authority related to health-care decisions that the principal would have. D.C. Code Ann. § 21-2202. Unless the DPOAHC states otherwise, these powers include:
- the authority to grant, refuse or withdraw consent to the provision of any health-care service, treatment, or procedure;
- the right to review the health care records of the principal;
- the right to be provided with all information necessary to make informed health-care decisions;
- the authority to select and discharge health-care professionals; and
- the authority to make decisions regarding admission to or discharge from health-care facilities and to take any lawful actions that may be necessary to carry out these decisions. D.C. Code Ann. § 21-2206(a).
In exercising this authority, the attorney in fact has a duty to act in accordance with the wishes of the principal as expressed in the DPOAHC. If the principal’s wishes are unknown and can’t be ascertained, then the attorney in fact must act in accordance with their good faith belief as to the best interests of the principal. D.C. Code Ann. § 21-2206.
How does one make it?
A DPOAHC must be dated and signed by the principal and two adult witnesses who, in the presence of the principal, affirm that the principal was of sound mind and free from duress at the time of signing. D.C. Code Ann. § 21-2205(c). The two adult witnesses shall not include the principal, the health-care provider of the principal or an employee of the health-care provider of the principal. At least one shall not be related to the principal by blood, marriage, or adoption and shall not be entitled to any part of the estate of the principal by a current will or operation of law. D.C. Code Ann. § 21-2205(d).
A DPOAHC document must include language which clearly communicates the principal intends the attorney in fact to have the authority to make health-care decisions on behalf of the principal and must include language identical or substantially similar to “this power of attorney shall not be affected by the subsequent incapacity of the principal.”; or “this power of attorney becomes effective upon the incapacity of the principal.” D.C. Code Ann. § 21-2205.
When does it come into effect?
A DPOAHC does not come into effect until a principal has been determined to lack the capacity to make health-care decisions by two licensed professionals qualified to make a determination of mental incapacity. One of the two certifying professionals must be a physician and one must be a qualified psychologist or psychiatrist. At least one of the two must examine the principal within one day prior to certifying the principal is mentally incapacitated. D.C. Code Ann. § 21-2204(a).
For the purposes of this determination, “incapacitated individual” means an adult individual who lacks sufficient mental capacity to appreciate the nature and implications of a health-care decision, make a choice regarding the alternatives presented or communicate that choice in an unambiguous manner. D.C. Code Ann. § 21-2202(5).
How long does it last?
The DPOAHC generally lasts until the principal dies or revokes it. D.C. Code Ann. § 21-2208.
How does one end it?
At any time the principal has the capacity to create a health care DPOA, the principal may revoke it by notifying the attorney in fact orally or in writing or by notifying the health-care provider orally or in writing. D.C. Code Ann. § 21-2208. Note that a subsequent DPOAHC automatically revokes any prior DPOAHC unless it states otherwise. D.C. Code Ann. § 21-2208(d).
What does an example look like?
A sample DPOAHC form is available at D.C. Code Ann. § 21-2207. The D.C. Law Library also provides a sample form here.
What else should one know?
Certification of incapacity is limited to the capacity to make health care decisions and may not be considered a finding of incompetency for any other purpose. D.C. Code Ann. § 21-2204(c).
Last updated July 2022
General
Instrument #1: Supported decision-making agreement (SDMA)
What is it for?
The SDMA allows an adult with a disability to voluntarily enter into an agreement with one or multiple other adults (the “supporter(s)”) who will help the adult with a disability with support regarding a range of life decisions.
What does it do?
Through an SDMA, an adult with a disability may authorize a supporter to: provide supported decision-making; be present during the supported decision-making process, when requested by the supported person; or in the presence of the supported person, assist the supported person in obtaining information that is relevant to a given life decision from any person; provided, that the supporter shall keep any information obtained under this paragraph confidential; or communicating the supported person’s decisions to others. D.C. Code Ann. § 7-2133(a)
A supporter acting pursuant to an SDMA may exercise only the authority expressly granted to the supporter in the SDMA. D.C. Code Ann. § 7-2133(b).
An individual may not be a supporter if they provide physical, mental, or behavioral healthcare services or disability services to the supported person; if they work for a government agency that is financially responsible for the adult with disability making the SDMA’s care; if a government agency finds that supporter has abused, neglected, or exploited a person with a disabiity; or the individual has been convicted in the last seven years of sexual assault, aggravated assault, fraud, theft, forgery or extortion. D.C. Code Ann. § 7-2132(b).
How does one make it?
An SDMA must be in writing, and signed by the adult with a disability and the supporter(s) in the presence of either two adult witnesses or a notary public, in substantially the same format as the SDMA form contained at D.C. Code Ann. § 7-2132(c).
When does it come into effect?
Unclear. An SDMA presumably comes into effect after signing and witnessing or notarizing the SDMA document. D.C. Code Ann. § 7-2132.
How long does it last?
Presumably, an SDMA lasts until the adult with a disability dies or revokes it.
How does one end it?
Presumably, the adult with a disability can revoke the SDMA at any time by any means that conveys the adult’s intent to revoke it.
What does an example look like?
A sample SDMA form is provided at D.C. Code Ann. § 7-2132(e). A sample form with instructions is also provided by the D.C. Department on Disability Services here.
What else should one know?
A specific form of SDMA limited to educational decisions may be used by adult students for decisions regarding their Individualized Education Programs. D.C. Mun. Regs. tit. 5, § E3034.3.
Instrument #2: Durable Power of Attorney (DPOA)
What is it for?
The “durable power of attorney” (DPOA) allows an adult (the “principal”) to designate in writing another (the “attorney in fact”) to act on behalf of the principal with respect to property, financial, or other matters.
What does it do?
Under a DPOA, an attorney in fact’s powers can be either broad or limited. The principal can empower the agent to, in general, do any lawful act with respect to the subject(s) specified in the DPOA. D.C. Code Ann. § 21-2103(10). Although these matters generally relate to property and financial matters, adult students may also execute a DPOA to authorize another to exercise the adult students educational rights. D.C. Code § 38-2571.04(a)(3).
Unless a POA expressly states otherwise, a POA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity. Va. Code Ann. § 64.2-1618.
Presumably, in making decisions for the principal, the attorney in fact must act in good faith and only within the scope of the authority granted in the POA. Also, presumably third parties must accept decisions made by the attorney in fact as if the principal had made them.
How does one make it?
The DPOA form must be in writing and contain such words similar to the following language: “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time”, or “This power of attorney shall become effective upon the disability or incapacity of the principal.” D.C. Code Ann. § 21-2102.
When does it come into effect?
Presumably, DPOA can state that the attorney in fact’s authority begins either immediately upon execution, at a future date, or upon the occurrence of a future event, such as the principal’s incapacity. Because Washington, DC does not specify how an incapacity must be made, the DPOA should do so.
How long does it last?
Presumably, the DPOA generally lasts until the principal dies or revokes it, unless the DPOA provides for another method of ending or revocation.
How does one end it?
Presumably, the principal may revoke a DPOA by any means conveying the principal’s intent to revoke. The agent must be notified of the revocation for it to have effect. D.C. Code Ann. § 21-2084.
What does an example look like?
A sample DPOA form is available at D.C. Code Ann. § 21-2101. The D.C. Council also provides an electronic form here.
What else should one know?
Washington, DC’s POA is based on the Uniform Power of Attorney Act.
Updated July 2022