What is the Difference between Guardianship and Guardian Advocacy?
Updated: Oct 6, 2020
Guardian Advocacy is a special type of Florida guardianship available for adult persons with developmental disabilities. A guardian advocate’s rights are generally the same as a guardian’s rights. However, the procedure for obtaining guardianship rights in a guardian advocacy proceeding is different than the procedure for obtaining guardianship rights for an adult in a guardianship proceeding.
The biggest difference between guardianship and guardian advocacy is that a court can appoint a guardian advocate for a disabled person without a formal proceeding to adjudicate the disabled person “incapacitated.”
Guardian Advocacy is appropriate for a person with developmental disabilities if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate.
Steps for Guardian Advocacy of an Adult with Developmental Disabilities
1. Petition to Appoint Guardian Advocate. To become the guardian advocate for a person with developmental disabilities, you will first file a Petition to Appoint Guardian Advocate with the court.
2. Documentation of Disabilities. You will also file recent documentation establishing the person’s developmental disabilities, such as a report by the disabled person’s doctor and a recent individual education plan (IEP) prepared by the disabled person’s educational providers.
3. Guardian ad Litem. The court will appoint a guardian ad litem to meet with the disabled person and submit a report to the court indicating whether the guardian ad litem believes a guardian advocacy is appropriate.
4. Court Hearing. After the guardian ad litem files his or her report, the court has a hearing on the Petition to Appoint Guardian Advocate.
5. Appointment of Guardian Advocate. If guardian advocacy is appropriate, the court will appoint a guardian advocate for the disabled person.
Steps for Guardianship of an Adult without Developmental Disabilities
1. Petition to Determine Incapacity. To obtain guardianship over an adult ward that does not have developmental disabilities, you must first file a Petition to Determine Incapacity with the court. This petition asks the court to find that the person is "incapacitated" and is not capable of exercising certain rights on his or her own behalf.
2. Examining Committee. The court then appoints an examining committee consisting of three members, including at least one psychiatrist or other physician.
3. Committee Reports. Each member of the examining committee must examine the alleged incapacitated person and file a comprehensive written report with the court.
4. Court Hearing. After the examining committee files its reports, the court conducts a hearing on the Petition to Determine Incapacity.
5. Order Determining Incapacity. The court will enter an order of incapacity if the court finds, by clear and convincing evidence, the person is incapacitated with respect to the exercise of a particular right or all rights.
6. Alternatives to Guardianship. Before establishing a guardianship for the incapacitated person, the court must first consider whether there is an alternative to guardianship that sufficiently addresses the problems of the incapacitated person.
7. Appointment of Guardian. If guardianship is appropriate, the court will then appoint a guardian.
To learn more about Guardian Advocacy, CLICK to download our free GUARDIAN ADVOCACY REPORT: How to Support Your Special Needs Child Without Losing the Right to Make Medical, Educational, Financial, or Legal Decisions.
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Lauren A. Merritt, P.A.
111 S. De Villiers Street, Ste. B
Pensacola, FL 32502