ANSWERS TO COMMON QUESTIONS

Parents no longer have the legal authority to make decisions for their children after they turn 18. Guardian Advocacy is a process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf 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. This is accomplished without having to declare the person with a developmental disability incapacitated. Guardian Advocate appointments are governed by Florida Statute §393.12 as well as Florida Statute chapter 744. 

From: FLORIDA GUARDIAN ADVOCATE LAW AND INFORMATION GUIDE

Parents are often not permitted to make medical, financial, or legal decisions for their disabled child once the child turns 18, unless they have been appointed as a Guardian-Advocate by the court.

This can leave your child unprotected in many situations.

If your child is arrested for having an episode or for doing something he or she did not understand as breaking the law, your voice in court may not carry weight. Assuming that your child’s diagnosis is sufficient for a judge to consider your input is a mistake. Legally, your child is recognized as an adult and will be treated as such.

Some believe that having a Power of Attorney will suffice; however, unless your child fully comprehends what he or she is signing, it can be a questionable document—some may accept it while others may reject it. A judge must approve a Guardian-Advocate designation, and an annual plan needs to be submitted each year to remain active.

Please don’t wait until it’s too late to begin the process. 

A Guardian Advocate for a person with a developmental disability shall have the same powers, duties, and responsibilities required of a guardian under Florida Statute Chapter 744 and those defined by the judge. These powers and duties are listed in Florida Statute §744.361. They include but are not limited to: filing an initial plan and annual reports; making provisions for medical, mental health, dental and personal care of the person with a developmental disability; making residential decisions on behalf of the person with a developmental disability; advocating on behalf of the person with a developmental disability in institutional and other settings; and making financial decisions on behalf of the person with a developmental disability. A Guardian Advocate need not be the caregiver of the person with a disability. 

From: FLORIDA GUARDIAN ADVOCATE LAW AND INFORMATION GUIDE

WHO MAY SERVE AS A GUARDIAN-ADVOCATE? 

Any resident of the State of Florida who is 18 years old and of sound mind is qualified to act as a Guardian Advocate. In addition, a non-resident may serve if he or she is related to the person with a developmental disability by blood, adoption or law according to Florida Statute §744.309(2). The court may appoint any person whom it considers fit, proper, and qualified to act as guardian whether or not that person is related to the person with a developmental disability. However, the court gives preference to a person who: • Is related by blood or marriage to the person with a developmental disability; • Has relevant educational, professional or business experience; • Has the capacity to manage the finances involved; or • Has the ability to meet the requirements of the law and the unique needs of the individual. The court shall also consider the wishes expressed by a person with a developmental disability as to who shall be appointed guardian or the wishes of the next of kin (closest living relatives) of the person with a developmental disability if the person with a developmental disability cannot express a preference.

WHO MAY NOT SERVE AS A GUARDIAN-ADVOCATE?

No person who has been convicted of a felony can be appointed to act as a Guardian Advocate. Furthermore, no person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in Florida Statutes §39.01 and §984.03(1), (2), and (37), or who has been found guilty of, regardless of adjudication, or entered a plea of no contest to any offense prohibited under Florida Statute §435.04 (level 2 screening standards) or under any similar statute of another jurisdiction can be appointed to act as a Guardian Advocate. Additionally, a person who provides substantial services to the person with a developmental disability in a professional or business capacity, or is a creditor of the person with a developmental disability, may not be appointed Guardian Advocate and retain that previous professional or business relationship. A person may not be appointed as Guardian Advocate if he or she is an employee of any person, agency, government, or corporation that provides service to the person with a developmental disability in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed person with a developmental disability or the court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the best interest of the person with a developmental disability. A provider of health care services to the person with a developmental disability, whether direct or indirect, may not be appointed the Guardian of the person with a developmental disability, unless the court specifically finds there is no conflict of interest with the best interest of the person with a developmental disability

From: FLORIDA GUARDIAN ADVOCATE LAW AND INFORMATION GUIDE

The process of becoming a Guardian Advocate of a person with a developmental disability does not require the hiring of an attorney. During the Guardian Advocacy proceedings, the Court will appoint an attorney for the person with a developmental disability to ensure that his or her best interests are protected. The attorney will need to meet face-to-face with the person with a developmental disability. If the person with a developmental disability is deemed to be indigent, the attorney will be provided at no cost from the Office of Criminal Conflict & Civil Regional Counsel or, in the case of a conflict, from a registry of qualified attorneys. If the person with a developmental disability is not deemed to be indigent, a private attorney will be appointed from a rotating list of qualified attorneys. The attorney will charge customary fees that may be paid out of the assets of the person with a developmental disability. If there is property involved, other than Social Security benefits or other government payee programs, the person seeking to become a Guardian Advocate of the person and the property must hire an attorney. These property rights include, but are not limited to: a pending lawsuit, estate matter, or other income or property right coming to the person with a developmental disability. The Court can expand the description of property rights by Petition and Order.

From: FLORIDA GUARDIAN ADVOCATE LAW AND INFORMATION GUIDE