[§302A-493]  Appointment of an educationalrepresentative; conditions.  (a)  An educational representative may beappointed if a student lacks decisional capacity to provide informed consent. A determination that the adult student lacks capacity, or that anothercondition exists that affects the adult student's instruction shall be made bya qualified licensed professional, such as the student's primary physician,psychologist, psychiatrist, or the department of health developmentaldisabilities division.

(b)  The transfer of rights for an adultstudent who lacks capacity to an educational representative shall be validthroughout the adult student's eligibility for special education.  Determinantsof the lack of decisional capacity may include the following:

(1)  The student's inability to understand the nature,extent, and probable consequences of a proposed educational program or option,on a continuing or consistent basis;

(2)  The student's inability to make a rationalevaluation of the benefits or disadvantages of a proposed educational decisionor program as compared with the benefits or disadvantages of another proposededucational decision or program, on a continuing or consistent basis; or

(3)  The student's inability to communicate suchunderstanding in any meaningful way.

Upon a determination that an adult student lacksdecisional capacity to provide informed consent, the qualified professionalshall document appropriately and make reasonable efforts to inform the adultstudent of the adult student's lack of capacity.  The parent(s) of the adultstudent may act as the educational representative (unless the adult student ismarried, in which event the adult student's adult spouse shall be designated asthe educational representative).  If the parent or adult spouse is notavailable or competent to give informed consent, the department shall appointthe educational representative from among the following:  a competent adultbrother or sister, adult aunt or uncle, or grandparent.  If these relatives arenot willing and able to serve as the adult student's educationalrepresentative, then a surrogate parent (who is not an employee of thedepartment of education) shall be designated to serve in this capacity by thedepartment. [L 2008, c 182, pt of §2]