Finance
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Education
Instrument: Educational representative appointment
What is it for?
When a parent believes that a student turning 18 years old “lacks the ability to provide informed consent with respect to his or her educational program,” a parent may apply in writing to the local educational agency (LEA) to be appointed educational representative. This appointment allows the parent to continue to exercise all the rights accorded parents under the Individuals with Disabilities Education Act (IDEA) even after the student reaches Louisian’s age of majority. La. Admin. Code tit. 28, § 520(B).
What does it do?
An educational representative appointment allows parents to prevent IDEA parental rights from transferring to students when they turn 18 years old without petitioning for guardianship. Only a parent can initiate an educational representative appointment, and only the parent may be appointed as educational representative. The parent may only make decisions with respect to the student’s educational program.
How does one make it?
A parent must apply in writing to the LEA and allege that the student “lacks the ability to provide informed consent with respect to his or her educational program.”
When does it come into effect?
Louisiana regulations do not specify, but presumably the LEA will notify the parent and student at the time of appointment.
How long does it last?
The appointment lasts for as long as the student receives special education or related services under the IDEA.
How does one end it?
Even if a student assents to the parent’s appointment as educational representative, at any time the student may revoke assent, and parental rights immediately transfer to the student upon revocation.
What does an example look like?
Louisiana regulations do not provide a sample application form or appointment letter.
What else should one know?
The student has a right to object to the parent’s application to be appointed educational representative either orally or in writing or by any other method of communication, and the student’s objection automatically prevents the parent’s appointment. The parent may not appeal the student’s objection. If a student fails to object, then the LEA will grant the parent’s application.
Last updated April 2021
Health
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General
Instrument I: Supported decision-making agreement (SDMA)
What is it for?
The supported decision-making agreement (SDMA) allows an adult with disability, as defined by the Americans with Disabilities Act, to memorialize with trusted supporters the ways in which the adult makes decisions about where to live, the services, supports, and medical care the adult wants to receive, with whom the adult wants to live, and where the adult wants to work. Supporters have the following duties:
- support the will and preference of the adult and not the supporter’s opinion of the adult’s best interests;
- act honestly, diligently, and in good faith;
- act within the scope set forth in the adult’s SDMA;
- avoid conflicts of interest;
- notify the adult in writing of the supporter’s intent to resign as a supporter. La. R.S. § 13:4261.203.
What does it do?
The SDMA authorizes the supporters to provide any of the following forms of support: (1) provide assistance in understanding the options, responsibilities, and consequences of the adult’s life decisions, without making those decisions on behalf of the adult; (2) assist the adult in accessing, collecting, and obtaining information that is relevant to a given life decision, including medical, psychological, financial, educational, or treatment records; (3) assist the adult in understanding such information; (4) and assist the adult in communicating the adult’s decisions to others. La. R.S. § 13:4261.201.
How does one make it?
The SDMA must include the following information: (1) the name, address, and phone number of at least one supporter; as well as (2) a description of the decision-making assistance that a supporter shall provide to the adult and, if multiple supporters, how they shall work together. Each named supporter must sign a declaration indicating the supporter’s relationship to the adult, willingness to act as a supporter, and acknowledgment of the supporter’s duties. An SDMA may also appoint more than one supporter, designate an alternate supporter, and/or authorize any supporter to share information with any other supporter named on the SDMA. La. R.S. § 13:4261.205.
When does it come into effect?
Louisiana law does not specify. Presumably, the SDMA enters into effect immediately.
How long does it last?
An SDMA terminates when the adult dies or executes a durable power of attorney (unless the POA expressly states that the SDMA should continue); when either the adult or a supporter revokes the SDMA; or when a court either determines the adult lacked capacity to execute or consent to the SDMA, finds that a supporter has exploited, abused, or neglected the adult, or appoints a guardian for the adult. La. R.S. § 13:4261.207.
How does one end it?
The adult with disability may revoke an SDMA at any time “in the form of an authentic act” that is dated and signed by the adult. Similarly, a supporter may also revoke the SDMA in the same way. La. R.S. § 13:4261.206.
What does an example look like?
Louisiana law does not recognize a standardized form for SDMAs.
What else should one know?
An adult must have capacity to execute or consent to the SDMA. An adult with disability subject to a guardianship order may also execute an SDMA, provided that the adult’s guardian signs on the adult’s behalf. Last, third parties have a duty to report any belief of abuse, neglect, or exploitation of the adult by a supporter to an adult protection or law enforcement agency.
Instrument II: Mandate
What is it for?
A mandate is comparable to what most jurisdictions call a “power of attorney.” In Louisiana, a mandate is a contract by which a person, “the principal,” confers authority on another person, “the mandatary,” to transact one or more affairs for the principal. The mandatary has broad authority to make decisions with regard to the principal’s property, although the mandatary is obligated to provide information and render an account “without delay” to the principal at the principal’s request. La. C.C. Art. 3003.
What does it do?
While the mandatary generally has authority to make decisions incidental to the principal’s affairs (“The principal may confer on the mandatary general authority to do whatever is appropriate under the circumstances” (La. C.C. Art. 2994)), the mandate must expressly authorize the mandatary to make certain types of decisions on the principal’s behalf, such as health care decisions. La. C.C. Art. 2997.
How does one make it?
The contract of mandate is not required to be in any particular form.
When does it come into effect?
Louisiana law does not specifically state, but presumably it becomes effective upon execution.
How long does it last?
The mandate ends when the principal or mandatary dies, if a court determines the mandatary is incapacitated, or if a court appoints a curator (also commonly referred to as a “guardian”) for the principal.
How does one end it?
The principal may also terminate the mandate at any time, unless the mandate specifically states that it is irrevocable. La. C.C. Art. 3025. If a mandate is recorded (i.e., filed in the public record), then the principal’s revocation or modification of the mandate will not take effect until it, too, is recorded. La. C.C. Art. 3027.
Also, by default, the mandate is considered durable, which means that it continues to be in effect even after a principal becomes incapacitated. La. C.C. Art. 3026.
The mandatary may also terminate the mandate at any time by notifying the principal of the resignation, unless the mandatary believes the principal is incapacitated, in which case the mandatary must notify another mandatary or designate a successor.
What does an example look like?
The contract of mandate is not required to be in any particular form.
What else should one know?
Louisiana’s mandate is not based on the Uniform Power of Attorney Act.
Last updated April 2021