Guardian Advocacy and Alternatives

What is a Guardian Advocate and how does it differ from a full Guardianship?

When a child turns 18, the parents no longer have the legal authority to make decisions on their behalf.  Guardian Advocacy is a process under §393.12 of the Florida Statutes for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf. 

Unlike a full guardianship, a court does not have to declare the person with a developmental disability incapacitated. Instead, the focus is on the “decision-making” ability of the individual. The annual reporting requirements of a Guardian Advocacy tend to be less detailed than a full guardianship. In some cases, it is not necessary to retain an attorney to file the initial Guardian Advocacy petition or to provide oversight for the duration of the guardianship. 

Who is developmentally disabled? 

Under §393.063(9), Florida Statutes, a person is considered to have a “developmental disability” if he or she has (1) been diagnosed with mental retardation, cerebral palsy, autism, spina bifida, Down Syndrome or Prader-Willi syndrome, (2) that manifested before the age of 18, and (3) constitutes a substantial handicap that can be expected to continue for the rest of the person’s life.

Are there different types of Guardian Advocacy?

Yes. You can apply to be Guardian Advocate of the Person, the Property or both. A Guardian Advocate of the Person can seek to make personal decisions, including determining residence, consenting to medical or mental health treatment, and making social decisions. A Guardian Advocate of Property can ask the court to make property decisions, like contracting, suing and defending lawsuits, and managing property or making gifts. Generally, both can request the right to seek government benefits or act as representative payee.

Are the powers of a Guardian Advocate different than the powers of a full guardian?

No.  A Guardian Advocate has the same powers and duties as a guardian under chapter 744, Florida Statutes, limited only by the court’s order that sets out the types of decisions delegated.

Once I am appointed Guardian Advocate, what are my responsibilities?

Even if you are the parent of the person with developmental disabilities, as a Guardian Advocate you are taking on fiduciary duties and must answer to the oversight of the court. Your rights as a Guardian Advocate are limited by the Order and by the type of Guardian Advocacy. If you need greater rights, you will need to seek further approval from the court.

Within 4 months of appointment, you may need to complete a court-approved guardianship education course. Occasionally, the court will waive this requirement.

A Guardian Advocate must file an Initial Report within 60 days of appointment setting out the mental health, medical, social and personal care service needs of the person with developmental disabilities and how those will be met. A similar report needs to be filed with the Court annually (within 90 days from the anniversary date of appointment.)

A Guardian Advocate of the Property may have additional duties. For instance, a more thorough accounting of property is required annually unless the only property is public benefits.

Do I need an attorney to become a Guardian Advocate? 

Not necessarily. Florida law no longer requires that you have an attorney unless you are delegated property rights in addition to the right to be representative payee of government benefits.  Many of the forms can be found online. Before ordering a Guardian Advocacy, the Court is required to appoint an attorney for the person with a developmental disability to protect his or her interest. If that person has assets, the attorney will be paid from those.

Are there benefits to having an attorney? 

Not only can an attorney help you with the forms, but he or she will guide you through the court system and make sure you understand your responsibilities as a Guardian Advocate. Even before you file, an attorney should inform you of alternatives to Guardian Advocacy and determine if a less restrictive alternative is available. The court is required to make that same determination, which could result in denial of your petition.

Are there alternatives to Guardian Advocacy?

For people with capacity: 

Advanced Directives: Written in “advance” of need, the following are documents that express a person’s desire or give decision-making authority to someone who is trusted. In each case, the person must have the mental capacity to understand what they are doing at the time the directive is signed. Each has legal requirements for both the contents and validity.

  • Durable Power of Attorney: If a person has the capacity to understand the transfer of decision-making rights to another, a durable power of attorney may be appropriate. This is a legal document that allows the “grantor” to give decision-making rights to an “agent” (also known as “attorney-in-fact.”) The rights granted can be as broad or as limited as the law allows and can include health care decisions. A power of attorney is “durable” when it is intended to continue even if the grantor becomes incapacitated.
  • Health Care Surrogate: This is a written document that names one or more people to represent you in health care decisions if you become unable to make them.
  • Living Will: This document sets out the maker’s wishes for the withholding or withdrawal of life prolonging procedures in the event of a terminal condition.

For people with limited capacity:

  • Medical Proxy: Under Florida Statute §765.401, a medical proxy can be appointed to make health care decisions for an “incapacitated or developmentally disabled patient” if there is no advance directive or, if there is an advanced directive, no surrogate is available to make health care decisions. The statute does not require any legal action or document for appointment as “proxy.” Instead, there is a statutory priority set forth, starting with a guardian, then moving to spouse, adult child, parent, adult sibling, adult relative “who has exhibited special care and concern,” close friend, and finally a social worker selected by a bioethics committee.
  • Client Advocate: Under §393.0651, if a parent is unavailable, a family member or friend may be appointed as the official client advocate for a person with developmental disabilities who receives services through the Agency for Persons with Disabilities. This does not result in any legal authority, but allows the client advocate to participate in decisions related to services.
  • Co-signer of Bank Accounts: If a bank account is set up to require more than one signature, this is a way to exercise some control over expenditures while a co-signer is learning financial skills.
  • Representative Payee: The Social Security Administration may appoint a representative payee to receive and manage benefits for another. The “rep payee” must account for these benefits annually.
  • Parent Representative: Ordinarily, when a child in the public school system turns 18, parental rights are automatically transferred to the child. If the student does not have a guardian and also does not have the ability to provide informed consent on his or her educational program, educational regulations provide that the parent can be “appointed to represent the educational interests of the student.” In any event, the school should use common sense in allowing a parent to continue to participate in IEP meetings.

What should I do if I have a guardianship from another state?

If the ward moves to Florida, the out-of-state guardian should notify the Florida court in the county of the ward’s residence. Under §744.306, the guardian has 60 days from the change of residence to file an authenticated copy of the guardianship order. If this is done, the court must give “full faith and credit” to the order. You may need a Florida attorney to assist, or to provide oversight of the guardianship and its annual reporting requirements.

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