Guest Article

Transfer of Rights in Virginia

by Louis S. Nuzzo, Attorney at Law

As disabled children approached their 18th birthday it is important that their parents understand the methodology available through which they can continue to assist them in making education, career, vocational and living choices. Among the tools available to assist their children and continue to act on their behalf with school systems are: Power Of Attorney, Educational Representative, and Guardianship.

Parents should keep in mind the fact that although their child will turn 18 their secondary education does not necessarily need to end at the conclusion of their senior year in high school. Additionally, parents need to be aware that if their disabled child moves on to college it may and probably will be necessary to assist them in at least formulating a Section 504 plan. Employing Power Of Attorney, Educational Representative or Guardianship will allow parents to continue the process of shaping their child's Special Education and use of Special Needs Accommodations. Understanding these instruments and choosing the most appropriate one and be a complex process and should be done in consultation with an attorney and health care providers.

A Power Of Attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power to act), and the one authorized to act is the agent, donee, or attorney. Through an Education Power of Attorney a disabled student will authorize another competent adult (usually a parent or parents) to be the student's agent to receive notices and to participate in meetings and all other procedures related to the student's educational program. A local educational agency must rely on such a designation until it is notified that the authority to act under the designation is revoked. An Education Power of Attorney will authorize a parent to continue to make education decisions including participating on a child's IEP team for their child. In Virginia a student who creates a power of attorney naming a third-party as his or her agent is deemed to be competent to make that agency decision. That means the student is deemed to understand the quality and nature of his or her decision in creating the power of attorney. We know however that some disabled students may not have the ability to understand the quality and nature of the Power of Attorney decision-making process and therefore Power Of Attorney may not be an appropriate tool to employ with some students and two other representative mechanisms may be appropriate..

An Educational Representative is a trained adult appointed by a Court to any adult student who is found eligible for Special Education Services to act on the student's behalf for all matters involving the student's public education including decisions related to the student's scholastic record. An Educational Representative may be appointed based on a very involved and potentially expensive process. An educational representative may only provide service to an adult student within the realm of their public education.

Guardianship is a legal relationship created when a person or institution is named in a will or is assigned by a court to take care of minor children or incompetent adult. Typically to become the Guardian of a child or an incompetent adult student either or both of the child's parent will petition a court to appoint them as Guardian. The guardianship of a minor remains under court supervision until the child reaches majority at 18 and based on the needs of the child may continue thereafter. The Guardianship of a disabled adult may continue indefinitely and requires among other things that the Guardian file an annual report with the appointing Court explaining the condition of and any changes the disabled adult has undergone during the previous year. The process of being named Guardian for a child or disabled adult is again complex and somewhat similar to being named an Educational Representative. Yet the powers derived through the Guardianship process are far more expansive and extend well beyond education and into every facet of the child's or disabled adult's life.

Each of the three representative mechanisms discussed can be powerful and useful tools in allowing parents to continue to assist their disabled children. The choice of the proper mechanism and monitoring the continued utility of the chosen mechanism should be undertaken in careful consultation with an attorney and health care professionals.