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Education
Instrument: Educational Representative (ER)
What is it for?
An “educational representative” (ER) appointment allows an adult student receiving special education services who is certified as unable to provide informed consent to have another adult make educational decisions on their behalf.
What does it do?
An ER is empowered to make decisions on behalf of a student who is unable to provide informed consent for such decisions. The ER has the authority to act on the student’s behalf for all the student’s educational matters and to exercise rights related to the student’s scholastic record. North Carolina State Board of Education and Department of Public Instruction, Policies Governing Services for Students with Disabilities § 1504-1.21(b)(2)(iii).
How does one make it?
An ER appointment is made by the local educational authority (LEA) as early as 60 days before a student turns 18 years old. An LEA may only appoint an ER after two among a list of qualified professionals certify in writing that “the adult student is incapable of providing informed consent and that the student has been informed of this decision.” The individuals who provide the certification may not be employees of the LEA currently serving the adult student or be related by blood or marriage to the adult student.
“Incapable of providing informed consent” means that an adult student is unable to do one of the following:
- Understand the nature, extent and probable consequences of a proposed educational program or option on a continuing or consistent basis;
- Make a rational evaluation of the benefits or disadvantages of a proposed educational decision or program as compared with the benefits or disadvantages of another proposed educational decision or program on a continuing or consistent basis; or
- Communicate such understanding in any meaningful way.
These certifications must also state how often the adult student’s ability to consent should be reviewed. Adult students may challenge such certifications in writing to the local educational agency’s administrator of special education.
When does it come into effect?
Presumably, the ER’s power begins either immediately upon the appointment or when the student turns 18 years old.
How long does it last?
The professionals’ certifications that an adult student is “incapable of providing informed consent” must state when and how often a review of the adult student’s ability to provide informed consent shall be made and why that time period was chosen. Presumably, if during a review the student is found capable of providing informed consent, then the ER’s authority would end.
How does one end it?
A student may challenge their ER appointment in writing to the LEA. Once the LEA receives the challenge, it may not rely on the appointed ER for any purpose until a court affirms the ER’s appointment.
What does an example look like?
North Carolina does not provide an example of an ER appointment form.
What else should one know?
An adult student may also use a power of attorney or “similar legal document” to appoint an agent to make educational decisions on their behalf.
Last update June 2022
Health
Instrument: Health Care Power of Attorney (HCPOA)
What is it for?
The “health care power of attorney” (HCPOA) allows an adult (the “principal”) to designate one or more other adults (the “health care agent” or “health care attorney-in-fact”) to make medical decisions on their behalf should the principal lack capacity to do so on their own.
What does it do?
The HCPOA allows the health care agent to make health care decisions on behalf of the principal when the principal lacks capacity to do so. The agent’s authority may include any aspect of the principal’s health care, treatment, service, or procedure meant to maintain, diagnose, treat, or provide for the principal’s physical or mental health or personal care, including life-sustaining measures and mental health treatment. N.C. Gen. Stat. Ann. § 32A-16(1a). An HCPOA may also contain instructions relating to the principal’s health care preferences. N.C. Gen. Stat. Ann. § 32A-19(a).
An HCPOA can give the health care agent either full authority to make health care decisions to the same extent that the principal could make those decisions if they had capacity to make and communicate health care decisions, or more limited powers. The agent may not make any health care decisions for the principal that are not included in the HCPOA. The HCPOA only allows the agent to make decisions with respect to the principal’s property or financial affairs to the extent necessary to exercise the agent’s health care decision-making authority. N.C. Gen. Stat. Ann. § 32A-19.
During any period following a determination that the principal “lacks understanding or capacity to make or communicate health care decisions,” all health care decisions made by a health care agent appointed in an HCPOA have the same effect as if the principal were acting on their own behalf. N.C. Gen. Stat. Ann. § 32A-24(b).
How does one make it?
Any adult “having understanding and capacity to make and communicate health care decisions” may make an HCPOA. N.C. Gen. Stat. Ann. § 32A-17. The HCPOA must be in writing and signed by the principal in the presence of two “qualified witnesses,” as well as notarized. N.C. Gen. Stat. Ann. § 32A-16(3). The qualified witnesses must be present when the principal signs their HCPOA and attest the principal is “of sound mind” and that they do not have certain conflicts of interest. N.C. Gen. Stat. Ann. § 32A-16(6).
When does it come into effect?
A health care agent’s authority begins when the physician(s) designated by the principal in their HCPOA determine in writing that the principal lacks sufficient understanding or capacity to make decisions relating to their health care. In the case of mental health treatment, the principal may designate a psychologist. In the event the designated physician or psychologist is unavailable, then the principal’s attending physician or psychologist may determine the principal’s incapacity. The agent’s authority only lasts during the period of the principal’s incapacity. N.C. Gen. Stat. Ann. § 32A-20.
How long does it last?
An HCPOA lasts until the death of the principal or their health care agent(s), the principal revokes the HCPOA, the principal replaces the HCPOA with a new one, or the agent(s) either resign or are removed by a court. N.C. Gen. Stat. Ann. § 32A-21.
How does one end it?
The principal can revoke an HCPOA at any time by the principal so long as the principal is “capable of making and communicating health care decisions.” To do so, the principal may either execute a notarized revocation document, make a subsequent HCPOA, or convey in any other manner that the principal seeks to revoke the HCPOA. The revocation only becomes effective once the principal communicates it to their health care agent(s) and their attending physician of the revocation. N.C. Gen. Stat. Ann. § 32A-20(b).
What does an example look like?
An optional HCPOA form is provided at N.C. Gen. Stat. Ann. § 32A-25.1.
What else should one know?
North Carolina has an Advance Health Care Directive Registry, where HCPOAs may be filed. A physician or health care provider may rely on a copy of the HCPOA obtained from this registry to the same extent as an original HCPOA. N.C. Gen. Stat. Ann. § 32A-24(a).
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/or 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. North Carolina Department of Public Instruction, Policies Governing Services for Students with Disabilities NC 1504-1.21.
What does it do?
A POA authorizes an agent to make a range of decisions regarding the management of the principal’s property and personal affairs. The agent is granted authority over a broad range of matters, unless the POA expressly limits the agent’s authority. The POA does not, however, allow an agent to make health care decisions for the principal. N.C. Gen. Stat. Ann. § 32C-1-103(2).
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. N.C. Gen. Stat. Ann. § 32C-1-104.
In making decisions for the principal, 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. N.C. Gen. Stat. Ann. § 32C-1-114.
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. N.C. Gen. Stat. Ann. § 32C-1-120.
How does one make it?
A POA generally must be in writing, signed by the principal or in the principal’s conscious presence by another individual at the principal’s direction, and notarized. N.C. Gen. Stat. Ann. § 32C-1-105.
A principal may, but is not required to, register the POA with the North Carolina Office of the Register of Deeds. N.C. Gen. Stat. Ann. § 32C-1-110(g).
When does it come into effect?
A POA can state that the agent’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. The latter kinds of POA are sometimes referred to as “springing” POAs because the agent’s authority comes into effect in the future.
If the POA becomes effective on the occurrence of a future event, such as the principal’s incapacity, the principal may select one person to determine in writing that the event has occurred. N.C. Gen. Stat. Ann. § 32C-1-109. Absent a designation of who will determine the principal’s incapacity, a physician or a licensed psychologist may do so. N.C. Gen. Stat. Ann. § 32C-1-109.
“Incapacity” means the inability of the principal to manage their property or business affairs due to an impaired ability to receive and evaluate information or communicate decisions even with the use of technological assistance. N.C. Gen. Stat. Ann. § 32C-1-102(6).
How long does it last?
A POA generally lasts until the principal or agent dies, the principal revokes the POA, the POA provides that it terminates at some future time, the purpose of the POA has been accomplished, the agent is removed or resigns from their position, or a court removes the agent. N.C. Gen. Stat. Ann. § 32C-1-110.
How does one end it?
A principal with capacity may revoke a previously executed POA in two manners. If the POA has been registered with the Office of the Register of Deeds of North Carolina, the principal must register in that office by a “instrument of revocation” that the principal is both not incapacitated and wishes to revoke the POA. N.C. Gen. Stat. Ann. § 32C-1-110(g)(b). If the POA has not been registered, the principal may revoke by either a subsequent, signed and notarized revocatory document or by intentionally destroying the POA document. N.C. Gen. Stat. Ann. § 32C-1-110(g)(b). In either case, the agent must receive actual knowledge of the revocation for the revocation to fully take effect. N.C. Gen. Stat. Ann. § 32C-1-115.
What does an example look like?
North Carolina provides an optional POA form at N.C. Gen. Stat. Ann. § 32C-3-301. Relatedly, an agent’s certification form is provided at N.C. Gen. Stat. Ann. § 32C-3-302.
What else should one know?
North Carolina’s POA is based on the Uniform Power of Attorney Act.