Guardianship

Guardian AdvocateChildren with Developmental Disabilities

Parents no longer have the legal authority to make decisions for their children once they attain 18 years of age. For a parent or family member with a loved one that has developmental disabilities this poses a major problem. Guardian Advocacy is a legal process for family members, caregivers or friends of individuals with a developmental disability to obtain the legal authority to act on their child’s behalf after they attain the age of 18 years.

Under Florida Statutes, the appointment of a Guardian Advocate is only available for a person with a developmental disability such as mental retardation, cerebral palsy, autism, spina bifida or Prader-Willi syndrome that manifested before the age of 18 and constitutes a substantial handicap that can be expected to continue for the rest of the person’s life.

Once appointed as a Guardian Advocate, an Initial Report must be filed within 60 days of appointment. Thereafter the Guardian Advocate must file a report for each year within 90 days from the anniversary date of appointment as Guardian Advocate.

GuardianshipAdults that are incapacitated

If a family member or friend is no longer able to make decisions, and the family member or friend did not sign a Durable Power of Attorney appointing someone to make those decisions prior to incapacity, then a Guardianship proceeding will have to be instituted with the Court.

A Guardianship Proceeding is instituted by the filing of a Petition to Determine Incapacity and a Petition to Appoint a Guardian. The court then appoints an attorney to evaluate, inform, and advise the alleged incapacitated person. The court-appointed attorney is present at the hearings and at all times represents the incapacitated person and ensures their legal rights are protected to the extent possible.

The court also appoints an examining committee that is composed of three health care professionals, including a psychiatrist, who will examine the alleged incapacitated person. The examining committee members will contact the residence of the alleged incapacitated person to schedule an appointment. After the capacity exam has taken place, each member will file a report as to his or her individual finding with regards to the person’s capacity.

A hearing will be scheduled with a circuit judge handling guardianship matters. Notices of this hearing are sent by certified mail, return receipt requested, to all interested parties (i.e. members of the family, etc.). If any interested party has an objection relating to the alleged incapacitated person’s mental capacity or who should be appointed as guardian, he/she may present that objection at the hearing. The alleged incapacitated person has a right to be present at the hearing, however, the court-appointed attorney may waive his or her appearance if that person is not able to understand or communicate meaningfully.

The first part of the hearing is devoted to determining whether the alleged incapacitated person is truly incapacitated. To determine incapacity, the judge considers the reports of the examining committee, the report of the court-appointed attorney, and any relevant evidence or testimony.

The second part of the hearing is devoted to determining if the Petitioner should be the guardian. The judge will consider evidence as to the Petitioner’s qualifications and determine if the Petitioner is capable of serving as a Guardian. Persons who have committed a felony or certain crimes cannot serve as Guardians.

If the judge finds the Petitioner fit to be a guardian, the judge will enter Letters of Guardianship. The Letters of Guardianship evidence the Guardians authority to act on behalf of the incapacitated person. Guardianship can be of the property or the person or of both.