Finance
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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?
The ER allows for an adult student’s school district to appoint an ER to make educational decisions on behalf of the adult student. The ER is authorized to make any decisions regarding an adult student’s education that the adult student would be allowed to make but for the school district’s determination that the student lacks the ability to do so. Wash. Admin. Code § 392-172A-05135(5).
How does one make it?
In order to appoint an ER, two separate professionals must state in a writing that they have conducted a personal examination or interview with the student, that the student is incapable of providing informed consent to make educational decisions, and that the adult student has been informed of this decision. The professionals may be either a licensed medical doctor, a physician’s assistant whose certification is countersigned by a supervising physician, a certified nurse practitioner, licensed clinical psychologist, or a guardian ad litem appointed for the student. Wash. Admin. Code § 392-172A-05135(5)(a).
Upon receiving the written certification, the school district may then designate one of the following individuals, in order of preference, as the student’s ER: the student’s spouse; the student’s parent(s); another adult relative willing to act as the student’s ER; or a surrogate ER. Wash. Admin. Code § 392-172A-05135(5)(b).
When does it come into effect?
Presumably, the ER’s authority begins immediately upon the ER’s appointment.
How long does it last?
An ER appointment lasts for one year, unless it is challenged during that time. Wash. Admin. Code § 392-172A-05135(c).
How does one end it?
The student, or another adult with a bona fide interest in and knowledge of the student, may challenge the certification at any time. While a challenge is pending, the school district may not rely on the ER’s decisions for the adult student until there is a new certification of the student’s inability to provide informed consent or to make educational decisions. Wash. Admin. Code § 392-172A-05135(c).
What does an example look like?
Washington does not provide an example of an ER appointment form.
What else should one know?
Adult students may also execute a power of attorney to appoint an educational agent of their choosing. Wash. Admin. Code § 392-172A-05135(6).
Last update June 2022
Health
No information available at this time.
General
Instrument #1: Supported Decision-Making Agreement (SDMA)
What is it for?
The “supported decision-making agreement” (SDMA) allows an adult with a disability “who need[s] assistance with decisions regarding daily living” to receive that assistance from one or more adult “supporters” for those decisions. Wash. Rev. Code Ann. § 11.130.705. “Disability” is defined as “an individual, a physical or mental impairment that substantially limits one or more major life activities.” Wash. Rev. Code Ann. § 11.130.710(1).
What does it do?
An SDMA authorizes supporters to assist the adult with a disability in any or all of the following ways:
- assist with understanding the options, responsibilities, and consequences of the adult’s life decisions, without making those decisions on behalf of the adult with a disability;
- assist with accessing, collecting, and obtaining information that is relevant to a given life decision, including medical, psychological, financial, educational, or treatment records, from any person;
- assist with understanding the information described above; and
- assist with communicating the adult’s decisions to appropriate persons. Wash. Rev. Code Ann. § 11.130.710(1).
Supporters are only authorized to assist the adult with a disability in accessing, collecting, or obtaining information that is relevant to a decision included in the SDMA. Wash. Rev. Code Ann. §11.130.735.
The adult with a disability may also make decisions independently of the arrangements described in an SDMA. Wash. Rev. Code Ann. § 11.130.710(3).
Third parties are required to rely on the SDMA and may not be held liable for doing so in good faith. Wash. Rev. Code Ann. § 11.130.750.
How does one make it?
An SDMA must be in writing, dated, and signed voluntarily by the adult with a disability and the supporter in the presence of two or more adult witnesses or a notary public.
If signed before two witnesses, the witnesses may not be supporters, employees of supporters, paid service providers, or anyone who does not understand the type of communication the person with a disability uses, unless an individual who understands the person with a disability’s means of communication is also present at the signing. Wash. Rev. Code Ann. § 11.130.740.
When does it come into effect?
Presumably, supporters’ role begins as soon as the above requirements are met.
How long does it last?
Presumably, the supporters’ role lasts until the adult with a disability either dies or ends the SDMA. An SDMA also ends automatically if a supporter abuses, neglects or exploits the adult. Wash. Rev. Code Ann. § 11.130.725(2)(a-b).
How does one end it?
Either the adult with a disability or a supporter may end an SDMA. The adult may end the SDMA either orally, in writing, through an assistive technology device, or by any other means or act showing a specific intent to end the SDMA. A supporter must notify the adult in writing that they resign. If an SDMA includes more than one supporter, then the SDMA remains in place with respect to supporters who do not resign. Wash. Rev. Code Ann. § 11.130.725
What does an example look like?
Washington provides an optional SDMA form at Wash. Rev. Code Ann. § 11.130.745. The Northwest Justice Project has also developed a sample SDMA form.
What else should one know?
An SDMA cannot be used as evidence for the petition or appointment of a guardianship or conservatorship. Wash. Rev. Code Ann. § 11.130.710(3).
Instrument #2: Power of Attorney (POA)
What is it for?
The “power of attorney” (POA) allows an adult (the “principal”) to authorize one or more others (the “agent(s)”) to make decisions concerning the principal’s property, business, personal, or health care affairs on the principal’s behalf. A POA may also be executed by an adult student for educational decisions. Wash. Admin. Code § 392-172A-05135(6).
What does it do?
The POA empowers the agent to make decisions with respect to a wide variety of matters on the principal’s behalf, including disposing of the principal’s property, entering into contracts, initiating legal actions, and accessing communications intended for the principal. Wash. Rev. Code Ann. §§ 11.125.260-390. This broad authority includes health care decisions. Wash. Rev. Code Ann. § 11.125.240(1).
An agent whose authority includes health care decisions may not authorize inpatient admission to a mental health facility or electroconvulsive therapy unless the principal has consented to such treatment in a separate mental health advance directive. Wash. Rev. Code Ann. § 11.125.400(3). Also, a health care agent may not be any of the principal’s physicians, the physicians’ employees, or the owners, administrators, or employees of the health care facility or long-term care facility where the principal resides or receives care. Wash. Rev. Code Ann. § 11.125.400(3).
The agent’s decisions bind the principal to the same extent as if the principal had made them. Wash. Rev. Code Ann. § 11.125.240(8). In exercising this authority, 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. Wash. Rev. Code Ann. § 11.125.140.
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. Wash. Rev. Code Ann. § 11.125.200.
How does one make it?
A POA must be in writing, signed and dated by the principal, and either notarized or witnessed by two adults who do not have certain conflicts of interest while in the presence of the principal and at the principal’s direction or request. Wash. Rev. Code Ann. § 11.125.050(1). If the principal is unable to sign the POA, they may direct either a notary public or other authorized official to do so on their behalf. Wash. Rev. Code Ann. § 64.08.100.
For a POA to be considered “durable,” meaning that the agent’s authority continues after the principal’s incapacity, it must contains the words “This power of attorney shall not be affected by disability of the principal,” or “This power of attorney shall become effective upon the disability of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s incapacity. Wash. Rev. Code Ann. § 11.125.040.
When does it come into effect?
The agent’s authority begins either immediately upon the POA’s execution or at a future date or upon a future event, such as the principal’s incapacity. Wash. Rev. Code Ann. § 11.125.090(1).
In the latter case, which is sometimes referred to as a “springing” POA, the principal may specify in the POA one or more persons to determine whether the future event has occurred. If the event is the principal’s incapacity and the POA does not specify who will make an incapacity determination, a physician or licensed psychologist who has personally examined the principal may do so. Wash. Rev. Code Ann. § 11.125.090(3).
“Incapacity” means the principal is unable to manage property, business, personal, or health care affairs because the individual:due to an impairment in the principal’s ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Wash. Rev. Code Ann. § 11.125.020(5)(a).
How long does it last?
A POA generally lasts until the principal or agent dies or becomes incapacitated (if the POA is not durable); 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. Wash. Rev. Code Ann. § 11.125.100.
How does one end it?
A principal may terminate a POA at any time. Although the exact manner of revocation is not specified, the agent must be notified for the revocation to be effective. Wash. Rev. Code Ann. § 11.125.100.
What does an example look like?
Washington does not provide a statutory POA form. The Northwest Justice Project has developed a sample durable POA form.
What else should one know?
Washington’s POA is based on the Uniformed Power of Attorney Act.
Last update June 2022