When a disabled child turns 18, they assume their full legal rights as adults. Some developmental disabilities could prevent the child from caring for themselves or handling their finances without assistance. However, once they reach legal adulthood, their parents no longer have the right to act on their behalf. If the disabled person can handle some decisions but not others, their family might wish to pursue Guardian Advocacy.
Guardian Advocacy is often viewed as a less restrictive alternative to guardianship because it does not require a determination of incapacity. Guardian advocates have the same responsibilities as guardians—the key distinction is a guardian may be assigned to any person who is determined to be incapacitated, while a person with a developmental disability must meet the statutory requirements to have a guardian advocate appointed.
A guardian advocate may only be appointed to individuals who have a developmental disability and lack the ability to perform some, but not all, of the tasks necessary to take care of his or her own person or property. Somebody with a developmental disability may also choose to voluntarily petition for the appointment of a guardian advocate. In any case, working with a Florida guardian advocacy lawyer in Coral Gables could be beneficial. A practiced guardianship attorney could explain the duties and process of appointment of a guardian advocate.
When Would Appointment of a Guardian Advocate Be Necessary?
When a child turns 18, parents no longer have the legal authority to make decisions on the child’s behalf. Parents with children who have a developmental disability are usually concerned about how they will be able to continue to make medical and financial decisions for their child once he or she becomes an adult. If parents believe their child with a developmental disability is unable to make informed decisions and the parents wish to continue to have the legal authority to make decisions for their child, they can do so by filing a petition for guardian advocacy.
Disabilities that Qualify for Guardian Advocacy
A guardian advocate is appropriate when a disabled person can make some decisions for themselves. If the individual cannot make any life decisions, a plenary guardianship is the better option to ensure they are protected and supported. However, plenary guardianship requires a court to find the individual legally incapacitated.
Florida Statutes § 393.063 (12) describes conditions that make an adult eligible for the appointment of a guardian advocate. Even though the individual is now a legal adult, the condition must have been diagnosed before they turned 18 years old. A judge might appoint a guardian advocate for someone who suffers from:
- Autism
- Cerebral Palsy
- Down’s Syndrome
- Intellectual disability, meaning an IQ under 70
- Phelan-McDermid Syndrome
- Prader-Willi Syndrome
A mere diagnosis with the condition is not enough. The family member or other interested party seeking the appointment of a guardian advocate must demonstrate that the disability is a significant handicap that is unlikely to resolve or improve in the future.
Appointing a Guardian Advocate in Coral Gables
When a disabled child approaches their 18th birthday, their family could petition the court to appoint a guardian advocate before they turn 18 years old. A family could file the petition up to 180 days before the child’s birthday.
The petition should include a statement from the child’s doctor confirming their diagnosis and inability to manage certain decisions without assistance. Upon receiving the petition, the court will appoint an attorney for the child to preserve their rights through the process.
Under standard guardianship proceedings, a committee must examine the proposed ward and find they lack the capacity to make certain decisions. However, in guardian advocacy proceedings, a court will only review the child’s educational evaluations, individual education plans, and support plans to determine if a guardian advocate is needed to exercise certain rights.
Who May Be a Guardian Advocate?
When the proposed ward is a young adult, one or both parents often serve as the guardian advocate. An attorney based out of Coral Gables might suggest that the family ask for the appointment of a standby guardian advocate as well, so that the ward is protected if their advocate becomes incapacitated or dies.
Courts favor appointing family members as advocates but any Florida resident over 18 without a felony conviction is eligible to serve as their standby guardian. Family members who reside out of state could be guardian advocates in some circumstances. Before their appointment, courts will require a criminal background check. A credit check might be required if the ward has assets other than Social Security payments.
Responsibilities of a Guardian Advocate
Even if you are appointed as your child’s guardian advocate, this role comes with fiduciary responsibilities. You will have to comply with some court oversight and will be required to complete a court-approved guardianship advocacy course.
You will also need to file an initial report with the court within 60 days of being appointed as a guardian advocate. The report should address the mental health, medical, social, and personal care needs of the person with developmental disabilities. You must then continue to make annual reports thereafter. A court may also remove a guardian advocate who fails to act in the ward’s best interests.
The Rights of the Disabled Ward
Guardian advocacy is considered less restrictive than a traditional guardianship, so your rights over the person with developmental disabilities are limited by the court’s order. Under guardian advocacy, decision-making for all rights may not be delegated to the guardian advocate. The person with the developmental disability is still able to participate in making decisions about his or her own life. This allows the person to develop in ways that would otherwise be impossible if he or she had no decision-making authority.
A ward who believes their advocate is not working in their best interest could also petition for their removal.
Work With a Coral Gables Attorney to Establish a Guardian Advocacy Today
We know the guardian advocate process can be time-consuming, intrusive, and stressful for everyone involved. However, working with an experienced Florida guardian advocate attorney in Coral Gables can make the process much easier for everyone involved. The attorneys at The Florida Probate & Family Law Firm understand your situation, and we will use our extensive experience to secure the most favorable solution in your case.
We pride ourselves on understanding our client’s needs and goals, and then use our knowledge, skill, and resources to work towards a desirable outcome. Contact us today to discuss your situation, get your questions answered, and find out how we can help guide you through the guardian advocate process.