South Carolina Trust
and Estate Law Blog

Since my young son was diagnosed with high functioning autism while in kindergarten a few years ago, I have become more aware of the rights and requirements of the federal Individuals with Disabilities Education Act (IDEA), and have had my share of IEP meetings and updates with his schools. For others dealing with these issues, an interesting problem could arise when a child who is eligible to receive special educational services under IDEA turned 18 years old.

Prior to the child reaching the age of 18, the rights under IDEA would be accorded to the child’s parents. But when the child turns 18, the rights transfer to the child. This obviously brings up the issue of what happens if the child is not capable of exercising those rights? A newly proposed statute would allow several resolutions to this issue.

First, if the child has not previously been determined to be incapacitated, the child may delegate these rights to another adult. This could be done via a power of attorney or other document to be created by the South Carolina Department of Education.

Second, if the above cannot be accomplished, it would be possible for certain qualified licensed professionals to make a certification in writing that the student is incapable of providing informed consent to make educational decisions. This certification would allow the custodial parents of the child to make decisions as an educational representative, or if they are not available, certain other designated close family members. The child would have the chance to object to this certification, and a determination of incapacity pursuant to a guardianship proceeding would seem to take precedence over this certification.

This proposed act appears to make it somewhat easier for family members to maintain control over an adult student’s rights to an education under IDEA. Without these amendments it would seem that the only alternative would be to bring a guardianship proceeding in order to gain control over the right to make educational decisions. However, the guardianship proceeding might very well not be appropriate in every situation, and can be a costly endeavor.

This new proposed law seems to try to fill in this gap where somebody may have rights under the law but be unable to adequately and thoughtfully exercise those rights. If there is any news on this new law I will provide an update, so keep coming back.

One night back in October, I started having a dull pain throughout my stomach. It was not too bad, but it was noticeable, and it woke me up from my sleep in the middle of the night. I took some Advil and went back to sleep. Woke up in the morning feeling a little better and went to work. That day my morning consisted of a lot of walking around. The pain came back, and started getting worse. In the afternoon I went home to rest. Around 4:00, I went back to work. Over the next few hours, the pain moved to the lower right side of my stomach. I started to think I had appendicitis.

Back in college many years ago I volunteered a few times in the local hospital’s ER. I remember one time discussing with the attending ER doctor the classic presentation of appendicitis, because there was a patient there he suspected had it. It was very similar to what I was experiencing … a dull pain throughout your stomach that migrates to the lower right side. That night I went to the local urgent care to get checked out. They didn’t see signs of infection (an indicator of appendicitis) and the doctor thought that since the pain was not that bad, it was most likely not appendicitis. With the caveat that in 5-10% of cases, it very well still could be. Went home that night, and was pretty uncomfortable sleeping. Woke up the next day, and had to take a day off from work. The pain was worse. Then all of a sudden in the afternoon, I started to feel much better. Until after dinner, when all heck seemed to break loose in my stomach. My stomach seemed to be on fire everywhere. Sleep was very difficult.

The next day I went to my primary care doctor who through a blood test now found signs of infection. He strongly suspected appendicitis and sent me for a office surgical consult. The surgeon also suspected appendicitis, who sent me for a CT scan. The radiologist diagnosed a ruptured appendix and sent me straight to the hospital. I had surgery that very night. The surgeon who did my surgical consent used the term “classic presentation” and suspected that the appendix probably ruptured the day before when I started feeling better. After the surgery I had a week long stay in the hospital with a few weeks recovery time thereafter.

In the grand scheme of things, this was a relatively minor medical blip. Certainly it could have been worse, and I certainly had some of those worse outcomes going through my mind. Anyway, as I was waiting to be brought into the operating room, my wife was there and I recall reminding her where she could find our life insurance policies and estate planning documents in case she needed them. Luckily we had taken care of that stuff already, so I guess I knew that if anything happened to me, she and the kids would be okay financially. So the lesson is, don’t procrastinate on getting your affairs in order, it is easy to do. Sometimes people think the process will be too long and complex so they do not want to engage in it. They put it off. I’ll tell you, I find that most of my clients are pleasantly surprised as to how painless and quick the process can be.

And of course the final lesson is this. Never ignore the signals that your body is sending you. If you notice a change in your body’s functioning or a pain that seems different from anything you’ve experienced before, definitely go get it checked out as soon as possible.