What If They’re Not Ready? Transfer of Rights and Decision-Making Capacity

Jul 6

When Capacity and Consent Collide: What Happens After IDEA Rights Transfer at Age 18 in Georgia?

Under the Individuals with Disabilities Education Act (IDEA), students gain full procedural rights at the age of majority unless state law provides otherwise (34 C.F.R. § 300.520). In Georgia, the age of majority is 18 (Ga. Comp. R. & Regs. 160.4.7.06(3)(g)), and there is no statutory exception based on capacity. That means all educational decision-making rights transfer to the student when they turn 18, regardless of their ability to read, write, speak, or understand those rights.

This creates a high-risk compliance zone for both districts and families when an adult student is legally presumed competent but functionally unable to make or consent to educational decisions.

The Legal Framework

IDEA: Rights transfer at 18 unless legally incompetent (34 C.F.R. § 300.520(a)); Consent must be informed and voluntary (34 C.F.R. § 300.9).
Georgia law: Only guardianship, conservatorship, or POA can prevent rights transfer (O.C.G.A. §29.4.1; §10.6B.1).
OCR: Only competent students or their legal guardians may authorize civil rights complaints.

If the Student Cannot Understand the POA

If the student is profoundly impaired and cannot understand what a Power of Attorney does or express assent, then the POA is not valid under Georgia law.

Option	Legally Allowed?	Why
POA executed by student with no capacity	❌ Invalid	Must have at least minimal understanding
Parent signs without guardianship	❌ Invalid	Only legal guardians can act for an adult
Informal agreement with parent	❌ Not legally binding	IDEA requires lawful authority post 18

🛑 Procedural Consequence: Consent Block

Once the student turns 18:

All IDEA rights transfer to them (34 C.F.R. §300.520; Ga. Rule 160.4.7.06(3)(g)),
But they cannot consent, and
No one else may consent unless they are the student’s guardian or legal delegate.

Therefore:

Evaluations, placement changes, and IEP updates must stop.
Services in place before age 18 may continue (“stay put”), but no new actions are lawful.

🔍 Based on GaDOE’s Eligibility Criteria for Intellectual Disabilities

Students meeting the “profound” level under GaDOE’s Intellectual Disability (ID) eligibility rule (Ga. Comp. R. & Regs. 160.4.7.05) often:

Score an IQ under 40,
Lack functional expressive or receptive language,
Require pervasive support for all daily living activities.

Intellectual Disability Level	Legal Capacity for POA?	Guardian Recommended?	IEP Consent Possible Without Guardian?
Mild (IQ 55 to 70)	Possibly	Case by case	Possibly (with support)
Moderate (IQ 40 to 55)	Unlikely	Likely	Unlikely
Profound (IQ less than 40)	❌ No	✅ Yes	❌ No

🧠 Why This Is a Systemic Problem in Georgia

Georgia does not recognize supported decision making,
Georgia has not adopted the IDEA §300.520(b) procedure allowing IEP teams to appoint educational representatives for students lacking capacity,
The only path is legal guardianship (O.C.G.A. §29.4.1).

What Schools Should Do Immediately

Create a tracking system for students approaching age 18
Educate families about transfer of rights and legal options
Pause all consent-dependent actions if no valid consent source exists
Document capacity concerns in the IEP
Train staff on the legal limits of parental participation post 18

The Compliance Reality

Many Georgia districts continue to involve parents after age 18 out of habit or necessity. But this is not legally defensible under IDEA. Without a guardian or delegated representative, the district cannot:

Initiate evaluations
Revise IEP goals or services
Make placement changes

This procedural freeze risks denial of FAPE and due process violations.

Final Thought

The transfer of IDEA rights at age 18 is not just a checkbox, it is a legal shift in authority. In Georgia, the lack of a capacity-based exception places the burden on families and schools to act preemptively. Without legal guardianship or valid delegation, schools must treat adult students as the sole rights holders, even if they are unable to speak, read, or understand what those rights mean.

Take Action

Want to prevent IDEA compliance gaps when students turn 18? Book a free consult and get a step-by-step capacity and consent protocol tailored to your district.

This article is for educational purposes only and does not constitute legal advice.

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▶ Compliance Checklist

Transfer of IDEA Rights/Decision-Making Capacity

☐ Identify students approaching age 18 during transition planning
☐ Provide written notice to families about rights transfer and legal options
☐ Train staff on who may legally consent post-18
☐ Pause all actions requiring consent if student cannot legally authorize them
☐ Document any concerns about student capacity in IEP meeting minutes
☐ Refer families to legal resources for guardianship or supported decision making
☐ Avoid informal parental agreements unless backed by lawful delegation

Failing to secure valid consent after the age of majority may violate IDEA and FAPE obligations.

▶ References

Sources & Guidance

34 C.F.R. § 300.520: Transfer of Rights – law.cornell.edu
34 C.F.R. § 300.9: Consent Definition – law.cornell.edu
Ga. Comp. R. & Regs. 160-4-7-.06(3)(g): sos.ga.us
Ga. Comp. R. & Regs. 160-4-7-.05: sos.ga.us
O.C.G.A. § 29-4-1: justia.com

Aubree Parent-Graupner https://www.ccsesolutions.com