What is a Guardian Advocacy?
A guardian advocacy is a summary form of guardianship designed for families with a developmentally disabled child over the age of eighteen who was diagnosed with their disability prior to attaining age eighteen. Florida law provides this summary process for individuals who have developmental delay, cerebral palsy, autism, Prader Willi disease or Spina Bifida.
In a guardian advocacy, no determination of incapacity is required. A letter from the child’s doctor outlining the child’s condition and prognosis takes the place of an incapacity determination. A guardian advocacy is filed in the county where the disabled individual lives. Both the disabled person and the proposed guardian advocate are generally both represented by counsel. Background checks, fingerprints, guardianship education and annual reports are all required. In most cases, the child’s parent(s) will be appointed as the guardian advocate(s).
The Guardian Advocacy process starts with an Application for Guardian Advocate by the parents or proposed Guardian Advocate. This application is transformed into a Petition for Guardian Advocacy that is submitted to the Court along with the required documentation. Both the ward (disabled individual) and the proposed Guardian Advocate must be represented by an attorney. An attorney may be appointed for an indigent person with disabilities. A court hearing will be held for the purpose of appointing the Guardian Advocate(s). In some instances, a Stand By Guardian may be appointed as well.
A Guardian Advocacy can be for the person only or for the property of the disabled person.
A guardianship may become necessary if you or someone you know is no longer capable of making their own financial and/or personal care decisions. Incapacity can arise as a result of an accident, illness or old age. Guardianship is most common when a person becomes incapacitated as an adult.
What are the different types of Guardianships?
Guardianship of the Person
In some instances, a person has little or no assets that require the appointment of a guardian but a guardian may still be required to make personal care decisions, such as housing, medical care and personal care. Although financial accountings are avoided, the court will require an annual plan summarizing the past year and outlining the plan of care for the upcoming year.
A plenary guardianship may be necessary if a person is incapable of making both financial and personal care decisions. The court-appointed guardian will take over each of these important decision making areas but will be required to solicit the court for permission to spend assets for the benefit of the ward, as well as to account for the ward’s assets and the ward’s care.
One way to avoid a court-ordered guardianship is through proper disability planning. Properly planned and executed Financial and Healthcare Powers of Attorney may alleviate the need for a guardianship. As an added measure of protection, we also recommend a Preneed Guardian Declaration naming your choice of guardian in the event a court-ordered guardianship cannot be avoided.
Limited Guardianships & Guardianships of the Property
Sometimes an individual is capable of making their own personal decisions but incapable of making their own financial decisions. In this case, a guardian of the property would be appointed to oversee the proper management of the ward’s assets.
A guardian of the property could also be appointed if a minor child is a beneficiary in an estate and inherits money prior to the age of 18. This would also be true in the event of a lawsuit settlement payable to someone under the age of eighteen (18).
The court will require at a minimum annual accountings to ensure that assets are being properly managed.
Guardian Advocacy and Guardianship Process
Educational Workshop (Optional)
Join us in our classroom, for an interactive workshop to explore concerns related to creating a financial and legal blueprint to address the special person’s unique personal and social needs. Families of people with special needs face planning challenges that accompany longer life expectancies – a future without full independence – and the need to maintain an outstanding quality of life. You will gain an overview of the three main federal disability programs and learn how to create a customized, comprehensive plan for your special person. Click here to see when our next Special People, Special Planning workshop will be held. (Complimentary)
Call our office to schedule a brief complimentary telephone conference with one of our attorneys, to review the legal process, court process and your responsibilities as potential guardians.
Assistance with preparation and filing of Annual Guardianship Plan.