[§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]