In Florida, the eighteenth birthday of a minor child confers all of the legal rights of an adult, even if the newly minted adult is developmentally disabled. A family member, caretaker or friend of an such an adult who lacks the ability to make independent decisions in some or many areas of his or her needs may seek court appointment as a Guardian Advocate of the disabled adult. As defined by Florida statute, developmental disability “means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.”
The Guardian Advocate has the legal authority to make decisions on behalf of the disabled adult in all areas set forth in the court order establishing the Guardian Advocate. This is a less restrictive option to seeking a formal guardianship because, unlike in guardianship proceedings, the disabled adult does not have to be found incapacitated. In fact, except for the areas specifically set out in the Guardian Advocate appointment court order, the disabled adult will retain all the legal rights of an adult. This makes the Guardian Advocate proceeding much less intrusive on the legal rights of the developmentally disabled adult than traditional guardianship proceedings.
The Guardian Advocate proceeding can also be more financially economical. There are two types of Guardian Advocates: (1) a Guardian Advocate of the Person and/or (2) a Guardian Advocate of the Property. The governing statute does not require attorney representation for the Guardian Advocate of the Person advocate applicant and the forms for court application and reporting are often available online. If the Guardian Advocate of the Property receives only government benefits on behalf of the disabled adult, an attorney is also not necessary under the statute. That said, there are many advantages to having the services of an attorney to ensure that the proceedings go smoothly.
If you are appointed as a Guardian Advocate, you accept certain legal fiduciary duties and reporting duties to the court. An attorney can ensure that you understand your legal responsibilities and that you comply with your obligations in a timely manner. Additionally, before appointing a Guardian Advocate, the court is required to find that no less restrictive alternatives to a Guardian Advocate are available. Your attorney can advise you regarding the nature of such less restrictive alternatives and help you better assess whether an appointment as Guardian Advocate is actually needed. If you decide to move forward with the process, your attorney can assist you in identifying all decision making abilities that should be requested to fall under the legal authority of the Guardian Advocate.
The Law Office of Jeanne Coleman has extensive experience in working with the families of disabled minors and adults. Contact her office today for a consultation concerning your interest in becoming a Guardian Advocate for a developmentally disabled family member or friend who meets the statutory definition of developmental disability.
