Guardianship – Part 2

Florida is one of the few states that has developed a process specifically designed to meet the needs of persons with DEVELOPMENTAL DISABILITIES—in Florida that process is GUARDIAN ADVOCATE. There are a few differences between GUARDIAN ADVOCATE and GUARDIANSHIP as I described in last month’s newsletter. First, Guardian Advocacy is limited to persons with at least one of five developmental disabilities as defined in Chapter 303, Florida Statutes.
They are out of the statute exactly, “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 be reasonably be expected to continue indefinitely”. Another important component is the person’s ability to make decisions. The standard is “an individual in need of guardian advocacy must lack SOME BUT NOT ALL the decision making ability to complete some or all of the tasks necessary to care for themselves, their property and or estate”. These distinguish this option from a standard Guardianship. There are advantages to a Guardian Advocacy if you meet the requirements. The law does not require a determination of incapacity. This is one of the main reasons that this is a less restrictive option for some folks. Also there is no requirement that the guardian advocate be represented by an attorney unless for a special reason the Court requires it or if the advocate is delegated any rights as to property other than being the representative payee for governmental benefits. For those reasons this is usually a less expensive, less intrusive option than guardianship. If you have any questions please call us at DIG (305) 669-2822 or email Sharon at Sharon@justdigit.org

Guardianship – by Sharon Langer

Do I need to file for a Guardianship for my 18 year old child who suffers from a disability??? That is an important question and one that troubles many parents and caregivers. A GUARDIANSHIP is a legal proceeding where a guardian is appointed by a COURT to exercise some or all the legal rights of the incapacitated person. The guardianship can be plenary where the incapacitated person loses all their legal rights or a limited guardianship where they can retain some rights such as the right to marry or vote or travel yet not be able to enter contracts, decide where they live or consent to medical treatment.
Who is the GUARDIAN?? A guardian is usually a parent or spouse or could be a public guardian who is appointed by the Court to care for the ward and all their assets.
How do I obtain a GUARDIANSHIP? A petition has to be filed with the court alleging the person is incapacitated. The petitioner is the person who submits the petition and makes the allegations of incapacity. The petitioner must be an adult and have personal knowledge of the alleged wards condition.
How is a person determined incapacitated?? After the Petition for incapacity is filed, the Court appoints an examining committee of at least two physicians and a psychologist. Those professional will each make an independent evaluation of the alleged ward and file a report with the court. The court will also appoint an attorney for the ward who will also meet the ward and evaluate the ward and file a report. When all the reports are filed the court will hold a hearing and the Judge will decide whether there will be a legal guardianship entered and what rights if any the ward will maintain. Once there is a Guardianship entered it remains in place until and unless the ward or someone on their behalf petitions the court to reinstate the ward’s rights.
If you have been appointed the Guardian then you must retain an attorney to represent you for the life of the guardianship and you must file annual reports with the court on both the financials of the ward and their health completed by their treating physician. This may seem a daunting task but if you are the caregiver of an adult with severe disabilities it may be an option you should explore.
If you have any questions just call us at DIG and ask for Sharon or email Sharon.