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Education
Instrument: Educational Representative
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. 8 Va. Admin. Code §§ 20-81-180(C)(3).
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 enumerated 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 local educational agency currently serving the adult student or be related by blood or marriage to the adult student. 8 Va. Admin. Code §§ 20-81-180(C)(3).
“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. 8 Va. Admin. Code § 20-81-180(C)(3).
A court can also appoint an ER for an adult student.
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. 8 Va. Admin. Code §§ 20-81-180(C)(3). 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. 8 Va. Admin. Code §§ 20-81-180(C)(3).
What does an example look like?
Virginia 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. 8 Va. Admin. Code §§ 20-81-180(C)(2). See also In re: Student with a Disability, 111 LRP 50818 (Virginia State Educational Agency, May 16, 2011).
Last updated June 2022
Health
Instrument: Advance Directive (AD)
What is it for?
The “advance directive” (AD) allows an adult (the “declarant”) to choose one or more others (the “agent(s)”) to make health care decisions on the declarant’s behalf while the declarant is incapable of doing so. Note that an AD may be limited to providing instructions as to the declarant’s health care and need not appoint an agent.
What does it do?
The agent may make decisions on behalf of the declarant with regard to any services for the purpose of preventing, alleviating, curing, or healing human illness, injury or physical disability, including but not limited to, medications; surgery; blood transfusions; chemotherapy; radiation therapy; admission to a hospital, nursing home, assisted living facility, or other health care facility; psychiatric or other mental health treatment; and life-prolonging procedures and palliative care. Va. Code Ann. § 54.1-2982.
Through an AD, the declarant can authorize the agent to take any lawful actions necessary to carry out the declarant’s decisions when they lack capacity, including, but not limited to, granting releases of liability to medical providers, releasing medical records, and making decisions regarding who may visit the patient. Va. Code Ann. § 54.1-2982. An AD may also limit the types of health care decisions that an agent may make for the declarant. Va. Code Ann. § 54.1-2983. An agent may not, however, consent to nontherapeutic sterilization, abortion, or psychosurgery. Va. Code Ann. § 54.1-2983.3(B).
The declarant has the responsibility of notifying health care providers about their AD, including if the AD has been submitted to Virginia’s Advance Health Care Directive Registry. Va. Code Ann. § 54.1-2983.
Even if a declarant is determined to be “incapable of making an informed decision,” they may protest an agent’s health care decision. In that case, an agent’s decision is only valid if the declarant’s AD expressly allows the declarant’s agent to make that decision, the decision does not involve withholding or withdrawing life-prolonging procedures, and the health care is medically appropriate as determined by the declarant’s attending physician. Va. Code Ann. § 54.1-2986.2(B).
How does one make it?
Any adult “capable of making an informed decision” may make an AD. Generally, an AD must be in writing and signed by the declarant in the presence of two adult witnesses. Only those who have a terminal condition may make an AD orally. A written AD may, but is not required to, be submitted to Virginia’s Advance Health Care Directive Registry. Va. Code Ann. § 54.1-2983.
When does it come into effect?
The agent’s power is granted whenever the declarant has been determined to be “incapable of making an informed decision” and lasts for the duration of the declarant’s incapacity. Va. Code Ann. § 54.1-2984. Such a may apply to a particular health care decision, to a specified set of health care decisions, or to all health care decisions. Va. Code Ann. § 54.1-2983.2(A).
“Incapable of making an informed decision” means the inability of an adult patient, due to either mental illness, intellectual disability, or any other mental or physical disorder that precludes communication or impairs judgment, to make an informed decision about providing, continuing, withholding or withdrawing a specific health care treatment or course of treatment because they are unable to understand the nature, extent or probable consequences of the proposed health care decision, or to make a rational evaluation of the risks and benefits of alternatives to that decision. Va. Code Ann. § 54.1-2982.
An incapability determination must be made by the declarant’s attending physician, a psychiatrist or licensed clinical psychologist, a licensed nurse practitioner, a licensed physician assistant, a licensed clinical social worker, or a designee of the local community services board. Va. Code Ann. § 54.1-2983.2 (c).
A single physician may at any time upon personal evaluation determine that a patient who has previously been determined to be incapable has regained their capability, at which time the agent’s authority ends. Va. Code Ann. § 54.1-2983.2(c).
How long does it last?
An AD lasts until the patient either regains the capability to make an informed decision or revokes the AD. Va. Code Ann. § 54.1-2985.
How does one end it?
A declarant “who is capable of understanding the nature and consequences of his actions” may revoke an AD at any time by the declarant by any of the following methods: a signed, dated writing; by physical cancellation or destruction of the advance directive by the declarant or another in his presence and at his direction; or by oral expression of intent to revoke. Va. Code Ann. § 54.1-2985(A).
A declarant may only partially revoke an AD, in which case any remaining and nonconflicting provisions of the AD shall remain in effect. Va. Code Ann. § 54.1-2985.
Note that if the AD has been submitted to the Advance Health Care Directive Registry, it will only be removed if the registry receives a notarized, written revocation. This additional requirement for removing an AD from the registry does not otherwise affect the validity of the revocation itself. Va. Code Ann. § 54.1-2985(B).
What does an example look like?
An optional statutory form is provided at Va. Code Ann. § 54.1-2984.
What else should one know?
Virginia allows Qualified Advance Directive Facilitators to provide assistance in completing and executing a written AD. More details about these Facilitators can be found here.
Last updated June 2022
General
Instrument #1: Power of Attorney (POA)
What is it for?
The POA allows an individual (the “principal”) to authorize another person (the “agent”) to make decisions concerning the principal’s property. A POA may also be executed for educational decisions. 8 Va. Admin. Code §§ 20-81-180(C)(2).
What does it do?
The POA empowers the agent to be able to make decisions and act with respect to the principal’s property whether or not the principal is able to act for themself. The agent is granted authority over a broad range of matters, unless the POA expressly limits the agent’s authority. Va. Code Ann. § 64.2-1622. A POA, however, does not authorize an agent to make health care decisions for the principal. Va. Code Ann. § 64.2-1601.
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.
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. Va. Code Ann. § 64.2-1612.
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. Va. Code Ann. § 64.2-1617.
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. Va. Code Ann. § 64.2-1603.
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. Va. Code Ann. § 64.2-1607. The latter kinds of POA are sometimes referred to as “springing” POAs because the agent’s authority comes into effect in the future.
If a POA becomes effective upon a future date, occurrence, or event, the principal may designate one or more persons to determine that the future date, occurrence, or event has occurred in writing. Absent a designation of who will determine the principal’s incapacity, this determination may be made by a physician if the principal has an impairment in their ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Va. Code Ann. § 64.2-1607(C).
How long does it last?
A durable POA generally lasts until the principal or agent dies; the principal revokes the POA; the POA provides that it terminates upon some future date or event; the purpose of the POA is accomplished; or the agent’s authority is revoked. Va. Code Ann. § 64.2-1608.
How does one end it?
A POA terminates when the principal revokes the authority. For the revocation to be effective, the agent must have actual knowledge of it.
What does an example look like?
There is no current statutory form for the POA. The disAbility Law Center of Virginia (dLCV) provides a sample POA form with instructions here. Please note the form and instructions download automatically.
What else should one know?
Virginia’s POA is based on the Uniform Power of Attorney Act.
Instrument #2: Supported Decision-Making Agreement (SDMA)
What is it for?
A “supported decision-making agreement” (SDMA) allows an adult (the “principal”) with an intellectual or developmental disability to choose another adult (the “supporter”) to provide assistance to the principal on a range of matters.
What does it do?
The SDMA grants the supporter the ability to assist a principal which sets out the specific terms of supported decision making including helping the principal manage, understand, and communicate decisions involving their medical, financial, and other affairs. The supporter also may advocate to ensure the wishes and decisions of the principal are implemented properly. Va. Code Ann. § 37.2-314.3(A).
How does one make it?
Presumably, the SDMA must be in writing and signed by the principal and supporter. Virginia’s Department of Behavioral Health and Developmental Services is responsible for implementing a program to educate individuals about the process by which an individual with an intellectual or developmental disability may enter into a supported decision-making agreement with a supporter, as well as the rights and responsibilities of persons with an SDMA. This Department is also responsible for developing model SDMAs for individuals who seek to enter into one. Va. Code Ann. § 37.2-314.3(B).
When does it come into effect?
Presumably, a supporter’s role comes into effect once an SDMA is executed.
How long does it last?
Presumably, a supporter’s role lasts until the principal dies, revokes the SDMA, or some other termination procedure occurs.
How does one end it?
Presumably, the principal may revoke an SDMA at any time.
What does an example look like?
Virginia does not provide a sample SDMA form at this time.
What else should one know?
Presumably, more information about the Virginia Department of Behavioral Health and Developmental Services’ SDMA program will become available on its website.
Last updated June 2022