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Guardianship &

Guardian Advocacy

 

Protection For Your Loved  Ones.

Our loved ones are the most important relationships in our lives. We are here to help make sure your loved ones are protected today and to ensure a plan is in place to protect them tomorrow. 

GUARDIAN ADVOCACY

What is Guardian Advocacy?

When a person with a developmental disability turns 18, that person's parents or caregivers no longer have legal authority to make decisions for him or her. Guardian Advocacy is a process for family members or caregivers of individuals with a developmental disability to obtain the legal authority to act on the disabled person's behalf after he or she turns 18 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.​

 

A court can appoint someone to be a Guardian Advocate of the person, a Guardian Advocate of the property, or a Guardian Advocate of the person and the property. A Guardian Advocate is obligated by ethical and statutory rules to make decisions in the disabled person's best interest.

Who is Developmentally Disabled?

A person must be “developmentally disabled” to qualify for Florida’s Guardian Advocacy proceeding. Florida law defines who is “developmentally disabled.” Under Florida Statute §393.063(12), a developmental disability means a disorder or syndrome that is attributable to:

 

  1. An intellectual disability (IQ less than 70);

  2. Cerebral Palsy;

  3. Autism;

  4. Spina Bifida;

  5. Down Syndrome;

  6. Phelan-McDermid syndrome; or

  7. Prader-Willi syndrome.

 

The disability must manifest before the age of 18 and must constitute a substantial handicap that can reasonably be expected to continue indefinitely.

Not everyone with a developmental disability needs a legal guardian. A Guardian Advocate is necessary if the person lacks the decision-making ability to care for their person or their property. 

How is Guardian Advocacy Different Than Traditional Guardianship?

The procedure for obtaining Guardian Advocate rights is different than the procedure for obtaining guardianship rights over an adult that is not developmentally disabled. Guardian Advocacy is a streamlined proceeding that allows the court to appoint a Guardian Advocate for a disabled person without a formal proceeding to adjudicate the disabled person “incapacitated.”

 

Instead of appointing an examining committee to perform examinations and file reports and then holding a hearing to decide whether the person is “incapacitated,” the court can accept existing documentation, such as medical reports and individual education plans, as evidence of the disabled person’s need for a Guardian Advocate.

When Can You Ask to Be Appointed Guardian Advocate?

A disabled person's parents are his or her natural guardians until the person turns 18. No Guardian Advocate needs to be appointed during most of a disabled person's childhood.

 

A parent or other qualifying caregiver can petition to appoint a Guardian Advocate any time after the disabled person is 17 years and 6 months old. In other words, the petition can be filed six months before the person’s 18th birthday. This allows enough time to make sure the Guardian Advocate is appointed before a child reaches the age of majority and becomes a legal adult.

MINOR GUARDIANSHIP

If a minor child’s natural guardians become unable to serve as the custodians of a minor child, the court can appoint a legal guardian to assume responsibility and care for the child. A minor guardianship may be necessary when a minor child’s natural guardians are no longer able to care for the child due to death, disability, incarceration, or otherwise.

Who Can Serve as a Guardian in Florida?

Although family members most commonly petition for guardianship of a minor, generally any competent adult who is a resident of Florida may serve as a guardian. For Florida residents, there is no requirement that the guardian be a relative of the minor. A non-resident of Florida may serve as a guardian if he or she is directly related to the minor or is a legally adoptive parent of the minor.

Who Cannot Serve as a Guardian in Florida?

Florida law prevents an individual from serving a guardian if any of the following apply:
- The person has been convicted of a felony;
- The person is incapable of discharging the duties of a guardian due to incapacity or illness;
- The person is otherwise unsuitable to perform the duties of a guardian; or
- The person has been judicially determined to have committed abuse, abandonment, or neglect against a child.