How Do I Remain the Guardian of My Adult Special Needs Child?
Updated: Apr 21
Sometimes our loved ones are born with special needs that require special care.
All children need help from their parents caring for themselves and making decisions when they are young children. However, children born with developmental disabilities may need help caring for themselves and making decisions even after they reach the age of majority and become legal adults. In Florida, children are considered legal adults when they reach the age of 18.
When a child becomes a legal adult, a parent needs special authority to continue making certain legal decisions for the child, especially when dealing with third parties. Even when a third party recognizes the need for the parent to help the adult special needs child, the law does not allow a parent to legally act for an adult child without specific authority. Let's say, for example, an adult child receives a monthly disability benefits check from the Social Security Administration. Even if the adult child is unable to open and maintain a bank account to manage the funds on his or her own, the child’s parent cannot do so on behalf of the child without the proper authority.
In Florida, a Guardian Advocacy proceeding is a summary guardianship process for family members, caregivers, or friends of individuals with a developmental disability that gives the guardian legal authority to act on the individual's behalf if the individual 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 a less expensive, less intrusive alternative to a traditional guardianship. In a Guardian Advocacy proceeding, unlike with a traditional guardianship proceeding, the court does not have to make a finding that the individual is “incapacitated.”
Does my special needs child qualify for a Guardian Advocacy?
Under Florida Statute §393.063(12), to qualify for a Guardian Advocacy, a person with a developmental disability must have an Intellectual Disability (IQ less than 70), Cerebral Palsy, Autism, Spina Bifida, Downs Syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome that manifested before the age of 18 and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
What if my special needs child cannot make any decisions for himself or herself?
A Guardian Advocate may be appointed if the person with a developmental disability 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. If an individual lacks the capacity to make any decisions for himself or herself, at all, then a traditional guardianship may be more appropriate.
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