Finance
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Education
Instrument: Educational representative appointment
What is it for?
The appointment is designed to allow an adult student to receive an “educational representative” that can make education decisions on the behalf of an adult age individual seeking to continue their education (the “principal”).
What does it do?
An educational representative is responsible for making educational decisions on behalf of an adult student receiving special education services “who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.” Miss. Code R. § 300.520(b).
How does one make it?
Presumably, an educational representative is appointed by the local educational agency.
When does it come into effect?
Presumably, it comes into effect immediately.
How long does it last?
Presumably, it lasts until the principal ages out of special education services.
How does one end it?
Presumably, an adult student may demonstrate an ability to provide informed consent subsequent to an educational representative
appointment.
What does an example look like?
Mississippi’s special education regulations do not provide a sample educational representative appointment form.
What else should one know?
Mississippi’s Department of Education is responsible for developing policies regarding educational representative appointments.
Updated May 2022
Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
The “power of attorney for health care” (POAHC) allows an adult with “capacity” (the “principal”) to designate another adult (the “agent”) to make health care decisions for the adult granting the power. The POAHC is one type of “advanced health care directive”; an individual instruction is another type. Miss. Code. Ann. § 41-41-203(b).
What does it do?
The POAHC allows a certain other adults to make any decision about the principal’s care, treatment, service, or procedure to maintain, diagnose, or otherwise affect an individual’s physical or mental condition. These decisions include:
(i) Selection and discharge of health-care providers and institutions;
(ii) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication, and orders not to resuscitate; and
(iii) Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care. Miss. Code. Ann. § 41-41-201(g) & (h).
Health care providers must generally follow decisions made by an agent pursuant to a POAHC. Miss. Code. Ann. § 41-41-215(4).
The POAHC does not affect the principal’s right to make health care decisions while having capacity to do so. Miss. Code. Ann. § 41-41-223. “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. Miss. Code. Ann. § 41-41-201(d).
How does one make it?
The POAHC must be in writing, dated, signed by the principal, and either signed by two adult witnesses or notarized. Miss. Code. Ann. § 41-41-205(2). Presumably, any two adults may serve as a witness so long as at least one witness is not related to the principal and the agent does not serve as a witness.
When does it come into effect?
Unless otherwise specified in a POAHC, an agent’s authority becomes effective only upon a determination that the principal lacks capacity, and ceases to be effective upon a determination that the principal has recovered capacity. Miss. Code. Ann. § 41-41-205(5).
The principal’s “primary physician” is responsible for determining whether the principal has or lacks capacity, unless otherwise specified in the POAHC. Miss. Code. Ann. § 41-41-205(6). The principal may designate their “primary physician” in the POAHC itself. Miss. Code Ann. § 41-41-209
How long does it last?
The POAHC remains in effect notwithstanding the principal’s later incapacity and may or may not include individual instructions. Miss. Code. Ann. § 41-41-205(2).
How does one end it?
A principal may revoke the designation of an agent only by a signed writing or by personally informing the supervising health-care provider. Miss. Code. Ann. § 41-41-207(1). Also, a subsequent POAHC overrides a previous one. Miss. Code. Ann. § 41-41-207(5).
An individual may revoke all or part of an POAHC, other than the designation of an agent, at any time and in any manner that communicates an intent to revoke. Miss. Code. Ann. § 41-41-207(2).
What does an example look like?
Miss. Code Ann. § 41-41-209 provides a statutory example of a POAHC.
What else should one know?
Mississippi’s Uniform Health-Care Decisions Act is a verbatim adoption of the Uniform Health Care Decisions Act.
Updated May 2022
General
Instrument: Durable Power of Attorney (DPOA)
What is it for?
The “durable power of attorney” (DPOA) allows an adult (the “principal”) to authorize another person to act as an “attorney in fact” to make decisions for the principal relating to the principal’s property.
What does it do?
Unless the DPOA limits the scope of the attorney in fact’s authority to make specific decisions or acts, the attorney in fact has all the rights, powers, and authority to act for the principal that the principal would have had with respect to their property. Note that a principal must use a power of attorney for health care to appoint an attorney in fact for health care decisions. Miss. Code. Ann. § 41-41-205(2).
All acts by an attorney in fact pursuant to a DPOA while the principal is incapacitated bind the principal as if the principal had done them. Miss. Code. Ann. § 87-3-107. In doing so, the attorney in fact has a duty to avoid conflicts of interest and to act in good faith within the scope of authority specified in the DPOA.
How does one make it?
A DPOA must be in writing and contain the words “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,” or similar words showing the intent of the principal that the attorney in fact’s authority should continue despite the principal’s subsequent disability or incapacity. Miss. Code. Ann. § 87-3-105.
When does it come into effect?
Presumably, the DPOA takes effect as soon as it has been executed, unless the DPOA itself states that it becomes effective at a future date or upon the occurrence of a future event or contingency, such as the principal’s incapacity. Mississippi does not define how a principal’s incapacity should be determined.
How long does it last?
Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument. Miss. Code. Ann. § 87-3-107. A DPOA may also specify a time of termination. Miss. Code. Ann. § 87-3-105.
How does one end it?
Presumably, the attorney in fact’s authority ends when the principal revokes the DPOA, although Mississippi does not specify how the principal should do so. Miss. Code. Ann. § 87-3-111(1).
What does an example look like?
Mississippi does not provide a statutory example of a DPOA form.
What else should one know?
The attorney in fact’s authority continues despite a subsequent guardian or conservator appointment for the principal, unless a court decides otherwise. Miss. Code. Ann. § 87-3-109 (1).
Mississippi previously adopted the 1979 Uniform Power of Attorney Act but has not enacted either the 1988 or 2006 revisions.
Updated May 2022