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Guardian Advocates for the Developmentally Disabled

The Florida guardianship process can be very complex to the uninitiated, and especially so for parents helping their disabled children. When a loved one is unable to make their own legal decisions, it is very likely that a guardianship will need to be established so that the court allows someone else to make their decisions.

There are many types of guardianships in Florida.  We frequently think about guardianships for people with dementia or who have been in an accident of some type and can no longer make their own financial decisions, but guardianships also exist for minor children or children who, when turning 18, were under a developmental disability.  With a guardianship for a minor child (under age 18), this is typically done when the minor either gets into some type of accident and a settlement occurs or inherits something worth over $15,000. In these situations, the guardian is typically the parent unless the parent has a felony conviction or is otherwise unable to serve.

When someone reaches age eighteen, a guardianship is only when the person lacks capacity to make personal and/or financial decisions. Adults must necessarily go through a process of declaration of incapacity first, which is done through an examination committee of three people. One member must be a psychiatrist or other physician. The remaining members must be either a psychologist, gerontologist, another psychiatrist, or other physician, a registered nurse, nurse practitioner, licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court’s discretion, advise the court in the form of an expert opinion. Only once the judge finds that incapacity exists will a guardian be appointed.

What is the basic process to establish a guardianship?

In order for any guardianship to be established, a person seeks legal counsel and they petition the court to appoint a guardianship. If the person is over age eighteen, the person who needs to have their rights taken away is generally known as the alleged incapacitated person (the “AIP”). Once the AIP has been determined to be incapacitated, a guardianship is generally started and the AIP now becomes a “ward” of the state.

Who Qualifies to Serve as a Guardian?

While the judge always appoints the guardian after a hearing, a guardian may be any adult who:

  • Has no felony convictions, AND
  • Is a resident of the State of Florida, OR
  • Does not live in Florida but is a qualified relative (blood relative, legally adopted child of the ward, etc.)

In appointing a guardian, the judge will also take into consideration any wishes expressed by the incapacitated person, either during the appointment hearing or by a ward's pre-need written declaration

In our law firm, the durable power of attorney we create typically names the nominated attorney-in-fact as the pre-need guardian as well. This means that in the event a guardian is needed, the court will generally appoint the attorney-in-fact as the guardian.

What are the Guardian's Duties, Once Appointed?

A guardian’s responsibilities typically include handling the person’s property and managing the person. This means making financial, legal and healthcare decisions for the ward. Each year, the ward's guardian must submit to the court a physician’s report and plan of care. Guardianship of the ward’s property involves keeping an accurate inventory of the ward’s property and assets. The guardian must use assets for the ward’s support, while making wise investments and financial decisions on the ward’s behalf. A guardian of property must get court approval for certain financial transactions, and the guardian must submit to the court detailed annual financial reports.

What makes someone an “Incapacitated Person”?

Florida Law defines an incapacitated person “who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.”  Importantly, the determination of incapacity takes place after petition to the court, the examination committee, an attorney is appointed to represent the incapacitated person, and more. Further:

  • To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
  • To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.

What Rights Are Taken Away with a Guardianship?

The judge will consider the decision-making ability of the person with developmental disability concerning the following rights, and may take certain rights away based upon the AIP's ability to make the following decisions:

(a) To marry.

(b) To vote.

(c) To personally apply for government benefits.

(d) To have a driver license.

(e) To travel.

(f) To seek or retain employment.

(g) To contract.

(h) To sue and defend lawsuits.

(i) To apply for government benefits.

(j) To manage property or to make any gift or disposition of property.

(k) To determine his or her residence.

(l) To consent to medical and mental health treatment.

(m)  To make decisions about his or her social environment or other social aspects of his or her life.

Appointing a Guardian for A Person With Developmental Disabilities

If you have a child with developmental disabilities, your child will have full legal rights to make their own decisions upon reaching age eighteen, meaning that your rights as “natural guardian” terminate at this time. This is likely when you will want to become the guardian for your developmentally disabled child.  Remember, unless you have had your rights taken away by the court system, you are capable of making your own decisions and retain full rights as a human being.

Bypassing the Determination Of Incapacity

The Florida Guardian advocate statute allows a shortcut for seeking the guardianship of a person with developmental disabilities. Florida statutes defines developmental disability means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome. If these conditions are present, the court may not need to appoint the examining committee to determine incapacity.

Wait – When my Developmentally Disabled Child Reaches Age 18, What Happens?

If you have been taking care of your developmentally disabled child for their entire life, it may be shocking to think that you can no longer make your child’s healthcare or other decisions, but that is certainly the case once your child reaches age eighteen.  If the parent wants to make their developmentally disabled child’s decisions, the guardianship process will (unfortunately) be needed to take away the rights of the child to give them to the guardian.

Guardian Advocates Versus Full Guardianship

A guardian advocate can be appointed, without an adjudication of incapacity, for a person with developmental disabilities, if the person lacks the decision-making ability to do some, but not all, of the decision making tasks necessary to care for his or her person or property. If the person with developmental disabilities has the decision-making ability to exercise some of the above listed rights, no adjudication of incapacity is needed, and a guardian advocate will be appointed to make decisions concerning the rights that the person with developmental disability cannot make.   .

Financial Accounting for Guardian Advocate

While the guardian advocacy program is a “normal” guardianship once created, only bypassing the formal declaration of incapacity, there is one exception - a guardian advocate may not be required to file an annual accounting if the ward only receives income from Social Security (such as SSI or SSD) and the guardian advocate is the person’s representative payee under these rules. If you have a child with developmental disability who is turning 18 soon, you need to take the steps to become his or her legal guardian because upon attaining 18 your child with developmental disabilities is presumed to have the capacity to make decisions for him or herself.  

Guardian Advocate Summary

When you reach age eighteen, the law assumes that you have full capacity to make your own decisions - even if a person is in a coma or has been diagnosed with a cognitive disorder, the law presumes that that person has capacity to make decisions, good or bad. The only institution that can declare a person incapacitated is the court – doctors, attorneys, the police or family cannot take away someone’s rights – only the court can under very specific rules and procedures. In these situations, you may need a guardianship to help manage the affairs of the disabled person.

If you need help with your minor child, especially when he or she turns 18, please do not hesitate to contact us.

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Kevin J. Wimmer
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Florida Guardianship and Probate Attorney
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