When a child with developmental disabilities nears adulthood, families often face the challenge of ensuring their loved one receives the necessary support while maintaining as much independence as possible. Guardian Advocacy is a legal option that allows parents or caregivers to obtain the authority needed to make important decisions on behalf of a developmentally disabled adult, without fully stripping them of their rights. Unlike full guardianship, which is reserved for those legally declared incapacitated, Guardian Advocacy provides a balanced approach, enabling the individual to retain autonomy where possible.
This blog post offers a comprehensive guide on what Guardian Advocacy entails, how it differs from full guardianship, and outlines the step-by-step process of becoming a Guardian Advocate.
What is a Guardian Advocate?
A Guardian Advocate is a person appointed by the court to represent someone with developmental disabilities who may lack the capacity to handle certain aspects of their daily life. This role is crucial for ensuring that individuals with developmental disabilities receive the necessary support while retaining as much independence as possible.
Defining Developmental Disabilities
Under Florida Statute 393, Guardian Advocacy is specifically designed for adults with developmental disabilities who are not entirely incapacitated but need additional assistance. To qualify under this statute, the individual must have been diagnosed with a developmental disability before the age of 18, and this diagnosis must be documented.
Some of the conditions recognized under this statute include:
- Intellectual disability
- Low IQ
- Cerebral palsy
- Autism Spectrum Disorder (ASD)
- Spina bifida
- Down syndrome
- Phelan-McDermid syndrome
- Willi Prader syndrome
What Happens When a Child with Developmental Disabilities Turns 18?
As a parent, you’ve likely handled everything for your child up until their 18th birthday. Once they turn 18, however, they are legally considered adults and are expected to make their own decisions. In some cases, you might still be able to make decisions with familiar doctors or schools, but it’s essential to act quickly to secure a Guardian Advocate for your child or loved one.
The sooner you take steps to establish a Guardian Advocate, the smoother the transition will be for everyone involved. This allows you to continue making important medical and financial decisions on behalf of your child or family member with developmental disabilities.
Read Also: Estate Planning for Young Adults
Guardian Advocate vs. Guardian: What’s the Difference?
While both roles involve helping individuals who need assistance, there’s a significant difference between a Guardian Advocate and a Guardian.
- Guardianship is a more formal process used when a person is declared incapacitated by the state. This process often involves taking away certain rights from the individual.
- Guardian Advocacy does not declare the person as incompetent. Instead, it acknowledges that the individual has developmental challenges diagnosed before the age of 18 and requires some additional help. This process is more streamlined and less restrictive than full guardianship, focusing on preserving the rights of the individual as much as possible.
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Do You Need an Attorney to Become a Guardian Advocate?
If you’re seeking to become a Guardian Advocate, particularly to make decisions related to medical care, education, or mental health, you do not necessarily need an attorney. The court system offers self-help forms that can guide you through the process.
However, if the individual has property, inheritance, or funds that need managing, you will need an attorney. Many people choose to work with an attorney to set up the Guardian Advocacy and complete the initial paperwork, after which they may continue independently.
Requirements to Be a Guardian Advocate
To qualify as a Guardian Advocate, you must meet the following criteria:
- Be over the age of 18
- Not be a convicted felon
- Be a Florida resident (unless you are a relative)
- Not be a healthcare provider hired to care for the individual
- Be physically and mentally capable of fulfilling the duties of a Guardian Advocate
Step-by-Step Process to Becoming a Guardian Advocate
If you’re considering becoming a Guardian Advocate, here’s a step-by-step guide to help you through the process:
Step One: Petition to Appoint
- Gather the following documents:
- Petition to Appoint Related Forms
- Names and addresses of next of kin
- Names and addresses of current treating physician(s)
- Date of diagnosis of the ward (if available)
- Proof of assets or income
- A letter, psychological report, or Individualized Education Program (IEP) stating the developmental disability, diagnosed before age 18.
Step Two: File the Necessary Paperwork
- Complete all necessary paperwork for filing with the Clerk of the Court.
- File the forms with the Clerk of Courts through e-portal or mail.
- Submit electronic fingerprints for the proposed Guardian(s).
Step Three: Petition for Appointment
- Submit the following documents:
- Petition for Appointment of Guardian (or Co-Guardian) Advocate
- Application for Appointment as Guardian Advocate
- Waiver and Consent to Appointment of Guardian/Co-Guardian Advocate(s) (if applicable)
- Oath of Guardian Advocate and Designation of Resident Agent
- Mandatory checklist (depending on county).
Step Four: File with Clerk of Court
- Ensure all forms and documents are correctly filed with the Clerk of Court.
Step Five: Court Appointment
- The court will appoint an attorney to represent the developmentally disabled person.
- A notice of hearing will be mailed to all parties.
- Hearings are currently held via Zoom.
After the Hearing: Final Steps
- The Probate Judge will sign an Order and Letters appointing you as the Guardian Advocate.
- You are required to complete an 8-hour online guardianship class within 4 months of your appointment.
- An initial plan and initial inventory (if applicable) are due within 60 days of the entry of the order and letters.
- Annual reports and checklists (if applicable) are due every year.
Other Resources and Information
Here are some additional resources to assist you in navigating the Guardian Advocacy process:
- Mental Health Association of Central Florida
- Disability Rights Florida
- FLCourts.gov for Guardian Advocate Forms
- Ninth Judicial Circuit Guardian Advocate Forms
- Lighting the Way to Guardianship
- Florida Statutes Guardian Advocate Statute
Becoming a Guardian Advocate is a significant responsibility but also an opportunity to continue supporting your loved one as they navigate adulthood. Whether you choose to work with an attorney or utilize the court’s self-help resources, it’s crucial to act as soon as possible to ensure a smooth transition and continued care for your child or family member with developmental disabilities. By following this step-by-step guide, you can confidently navigate the process and provide the best possible care for your loved one.
For personalized advice and additional guidance, contact our experienced attorneys to guide you through the steps of the guardian advocacy process.