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



(b)  The transfer of rights for an adult
student who lacks capacity to an educational representative shall be valid
throughout the adult student's eligibility for special education.  Determinants
of 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 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



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



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