What is a Guardian Advocacy?
Written By Attorney Ashley K. Roof
A Guardian Advocacy is a legal proceeding, implemented in the Circuit Courts of Florida, in which a Guardian Advocate is appointed for a developmentally disabled individual. Typically, this type of proceeding occurs when an individual with a developmental disability reaches the age of 18 and is no longer a minor, but still requires aid with daily decision making tasks. Under Florida Statute Â§ 393.12, if a 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 Advocate may be appointed.
Who is developmentally disabled?
A developmentally disabled individual is person who has been diagnosed with a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, Down syndrome, spina bifida, or Prader-Willi syndrome. The disorder or syndrome must be diagnosed before the age of 18 and constitute a substantial handicap that can “reasonably be expected to continue indefinitely.”
What is the procedure for establishing a Guardian Advocacy?
A Guardian Advocacy proceeding may be sought for a minor beginning at the age of 17 years and 6 months old. If a Guardian Advocate is appointed, the order of appointment can be issued and upon the minor’s 18th birthday.
To initiate the proceeding, a Petition for Appointment of a Guardian Advocate for a Person with Developmental Disabilities must be filed by an adult person who is a resident of the State of Florida. The petition must satisfy the following requirements:
- state the name, age, and address of the person filing the petition and their relationship to person with the developmental disability;
- State the name, age, county of residence, and present address of the person with the developmental disability;
- Allege that the petitioner believes that the person needs a Guardian Advocate and specify the factual information on which such belief is based;
- Specify the exact areas in which the person lack the decision making ability to make informed decisions about his or her care and treatment services or to meet the essential requirements for his or her physical health or safety;
- Specify the legal disabilities to which the person is subject; and
- State the name of the proposed Guardian Advocate; the relationship of that person to the person with a developmental disability; the relationship the proposed guardian has with a provider of health care services, residential services, or other services to the person with a developmental disability; and the reason why the proposed guardian should be appointed.
In order to ensure the person with the developmental disability’s rights are protected, the person must be notified in writing and verbally of the petition for appointment, counsel must be appointed for the person within 3 days of filing the petition, and a hearing must take place as soon as practicably possible. In addition, and if available, the person’s advanced directives should be considered by the court, and if possible, the person’s rights should be restored as soon as possible.
Are there different types of Guardian Advocacy?
Yes. A Guardian Advocate may be appointed a Guardian Advocate of the Person, of the Property, or both. A Guardian Advocate of the Person can make personal decisions for the developmentally disabled individual, including residency determination, consent to medical or mental health treatment, and social decisions. A Guardian Advocate of the Property may seek decisions regarding the individual’s property, such as contracting, managing property, suing and defending lawsuits, purchasing real property, and making gifts. Both types of Guardian Advocates can seek government benefits for the developmentally disabled individual.
If you are only requesting a Guardian Advocacy of the Person, there is no need to retain an attorney; however, if you are requesting a Guardian Advocacy of the Property, or of the Person and Property, you must retain an attorney.
Depending on the type of decision the Guardian Advocate is seeking, court approval may be required.
What are the Guardian Advocate’s rights and duties?
Once appointed Guardian, a person takes on fiduciary duties and is under court oversight. The initial court order appointing a Guardian Advocate may limit the Guardian to certain decision making capabilities, and any additional decision must seek court approval.
Within 60 days of appointment, a Guardian Advocate must file an initial report with the court, outlining the mental health, medical, social, and personal care service needs of the person with developmental disabilities and how these needs will be met. A Guardian Advocate is required to file an Annual Plan every year following the anniversary of appointment.
If a Guardian Advocate of the Property is appointed, a thorough accounting of the use of all assets owned by the individual with the developmental disability must be filed with the court on an annual basis.
Is a Guardian Advocacy avoidable?
Yes. Much like a Guardianship, a Guardian Advocacy may be avoided if the individual with developmental disabilities has the capacity to execute and has executed an advanced directive for health care or a durable power of attorney. If the court finds these documents sufficient to address the needs of the individual with the developmental disability thus providing for a sufficient alternative to the Guardian Advocacy, then the court may find that a Guardian Advocacy is not necessary.
However, these documents may be challenged on the basis of validity, or that the documents do not sufficiently address the needs of the person for whom the Guardian Advocacy is sought, through the filing of a verified statement with a factual basis for the invalidity.
The Guardian Advocacy process can be quite complex and overwhelming, especially if you are caring for a developmentally disabled child full time. At the Elder Law Center of Kirson & Fuller, we are well versed in Guardian Advocacy and would be happy to assist in navigating the process. If you have questions regarding the Guardian Advocacy process, please contact our office at 407-422-3017 to set up a consultation.
Ashley K. Roof, Esq.