Guardianship & Guardian Advocacy
Protection for your loved ones.
Lauren A. Merritt, P.A. knows our loved ones are the most important relationships in our lives. Lauren is here to help make sure your loved ones are protected today and to ensure a plan is in place to protect them in the future.
What is a Guardian Advocate?
When a child with a developmental disability turns 18, the parents no longer have legal authority to make decisions for the adult child. 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 Guardian Advocacy proceeding is different from a full guardianship proceeding because the court does not have to declare the person with the developmental disability "incapacitated." Not everyone with a developmental disability needs a legal guardian. A Guardian Advocate is necessary if the person lacks the decision-making ability to make necessary decisions relating to daily life. During a Guardian Advocacy proceeding the court will appoint an attorney for the person with a developmental disability to ensure their best interest is protected.
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 child's best interest.
When Can You Ask to Be Appointed Guardian Advocate?
The special needs child’s parents are his or her natural guardians until the child turns 18. No Guardian Advocate needs to be appointed during most of the child’s childhood.
A parent or other qualifying caregiver can petition to appoint a Guardian Advocate any time after the special needs child is 17 years and 6 months old. In other words, the petition can be filed six months before the child’s 18th birthday. This allows enough time to make sure the Guardian Advocate is appointed before the child reaches the age of majority and becomes a legal adult.
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.