By Barbara Hughes, Esq.
When individuals with disabilities reach the age of 18, they are legally considered to be adults and in charge of their own education decisions. At this point, some will need to have parents or another adult appointed as guardian, to handle all or most of the decision-making. On the other hand, high-functioning individuals with disabilities who are continuing their schooling will not need a guardian but may still need help investigating their options and navigating the education bureaucracy. How can high-functioning young adults with disabilities keep their parents involved and legally permitted to participate in education decisions when guardianship is not appropriate? There’s an innovative alternative which can answer that need: an education power of attorney.
This tool can be very empowering for individuals with disabilities. It enables them to concentrate on learning by freeing them from potentially stressful activities such as filling out forms or standing in a real or “virtual” line to register for classes. The young adult determines who will be the agent to act on his behalf, as well as the scope of the agent’s potential actions, while retaining the authority to revoke the power of attorney at any time.
The attorney drafting such a document represents the young adult, and both parties should be prepared for the initial meeting. Parents can explain to their adult child that while part of growing up is being able to make one’s own decisions, there are certain responsibilities that could be usefully shared or delegated. The attorney will help create the tool and explain how it works. By describing to the attorney the young person’s conversation style, reactions to external stimuli and cues that indicate the need to take a break, parents can help ensure that the consultation will be as successful as possible.
Because education powers of attorney are not yet covered by most states’ statutes, it can be valuable to involve a responsible individual with the local school district in their preparation. An attorney should send a proposed version of the document to the district’s legal counsel, explaining the situation and asking for suggestions or feedback. Early collaboration in this form of problem-solving will minimize the likelihood of future conflict and maximize acceptance.
Since this is an evolving area of the law, in nearly all states there are no templates or state-approved forms for the education power of attorney, making the services of a special needs attorney essential. A version of the instrument that I devised nearly 15 years ago has been used in secondary school, at a vocational-technical school and at a state university, helping to pave the way for the young adult’s educational success. An experienced professional’s sensitivity to the young adult’s needs, familiarity with special education processes and knowledge of changing statutes can ease the entry to adulthood.
The document does not constitute legal advice and should be reviewed by legal counsel and adapted as appropriate to specific cases.