Florida Guardian Advocacy: How do I remain the Guardian of my special needs child?

In Florida, remaining the Guardian of my special needs child upon reaching the age of majority, 18 years, requires the parent to become the legal Guardian of the child through the Court system. Becoming a guardian is a legal proceeding. Typically a family member, petitions a court to determine that the individual cannot manage his or her affairs because of a disability (a lack of capacity). A guardian is the person appointed by a court to manage the affairs of the person with the disability. The Guardian’s role is to step into the shoes of the person with the disability and make decisions for them. There are two types of guardianships for an adult defined by the Florida Statutes: Guardianship of an Adult and Guardian Advocacy.

What is the difference between Guardianship of an Adult and Guardian Advocacy?

Guardianship of an Adult is intended for any adult with a disability. Obtaining guardianship of an adult can be expensive and is a more complicated process. Someone must petition a court to become a guardian and must also petition the court to determine whether the person with the disability lacks the capacity to make his or her own decisions. Determining whether an adult lacks the capacity to make his or her own decisions requires the court to appoint an examining committee to evaluate the person with the disability and file reports with the Court. Each of 3 medical professionals on the examining committee will prepare a report to inform the Court whether the person with the disability needs a guardian.

When a special needs child turns 18, the Guardian Advocacy program offers a less intrusive and less expensive alternative to Guardianship of an Adult. Guardian Advocacy is specifically designed for individuals with developmental disabilities. Guardian Advocacy only requires you to file a petition with the court to become a guardian. Guardian Advocacy does not require you to also petition the Court to determine the special needs child’s capacity.

Does my special needs child qualify for a Guardian Advocacy?

Florida Statute 393.063(12) defines a developmental disability to include “a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.”

Florida Statute 393(2)(a) further states a Guardian Advocacy is appropriate when a special needs child “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 or if the person has voluntarily petitioned for the appointment of a guardian advocate.”

What is the process for establishing Guardianship of my special needs child? 

Becoming the Guardian of my special needs child begins with first obtaining an attorney and then filing a Petition for Guardian Advocate with the Court. A Guardian Advocate is the guardian in a Guardian Advocacy. In Florida, you must be represented by an attorney to become a guardian, but there are cases when a guardian advocacy does not require an attorney.

A person who is being considered for appointment or is appointed as a guardian advocate need not be represented by an attorney unless required by the court or if the guardian advocate is delegated any rights regarding property other than the right to be the representative payee for government benefits. This paragraph applies only to proceedings relating to the appointment of a guardian advocate and the court’s supervision of a guardian advocate and is not an exercise of the Legislature’s authority pursuant to s. 2(a), Art. V of the State Constitution.

Once the petition is filed, the Court appoints an attorney to represent your special needs child. Your special needs child’s attorney is referred to as a court-appointed attorney. The court-appointed attorney’s role is to meet with you and your child and advise the court of whether a Guardian Advocacy is appropriate and whether you should be their Guardian Advocate. Once the court-appointed attorney completes their meeting with you and your child, a hearing is held. If the court-appointed attorney agrees Guardian Advocacy is appropriate and that you should be the Guardian Advocate, you shall be appointed your child’s Guardian Advocate.

If your special needs child is about to turn 18 years of age, contact the Law Office of David M. Goldman, PPLC to speak with a Jacksonville Guardianship Lawyer for a free initial consultation to begin the process of becoming the Guardian of my special needs child.