Guardianship

Your Child with Special Needs is Turning 18 Are They Competent to Make Their Own Decisions?

When your child turns 18 it is presumed, they will be able to handle his or her own affairs unless a legal proceeding “Guardianship” gives some or all the responsibility for him or her to a parent or guardian.

Guardianship removes an adult’s right to make decisions about the areas of his or her life that a court has decided the person is not competent to make their own decisions about. The law refers to a person for whom a guardian has been appointed as a “ward” of that guardian.

Each of Florida’s guardianship statutes require that even when a right has been taken from an individual and given to a guardian or guardian advocate, that guardian is still required, to the extent possible, to consider the individual’s wishes and to allow the individual to participate in decisions affecting their life.

Below are the types of guardianship that exist under Florida law.

Full (Plenary) Guardianship, Florida Statute 744.102 (8)(b)

A person(s) is appointed by the court to exercise all delegable legal rights and powers of the person who has a disability. It requires that there be an adjudication of the person as incapable of handling any personal decisions, money and property; i.e., what the Florida law once called incompetent and now calls incapacitated. Few people require this type of guardianship.

Limited Guardianship, Florida Statute 744.102 (8)(a)

A person(s) is appointed to exercise only specified rights and powers which are named by the court. A limited guardianship occurs when the court has found that the individual is partially incapacitated and lacks the capacity to make some, but not all, of the decisions necessary to care for his/her person or property.

Emergency Temporary Guardianship, Florida Statute 744.3031

A temporary guardian may be appointed for the person or property, or both, for a person who is alleged to be incapacitated, prior to the appointment of a full guardian. A temporary guardian may be appointed only after a petition for incapacity has been filed. In order to appoint a temporary guardian, the court must find specifically that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that their property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.

Voluntary Guardianship, Florida Statute 744.341

If the court determines that the individual is not incapacitated, and the individual files a voluntary petition for guardianship, the court may appoint a guardian or co-guardians of the property of a person who, though otherwise mentally competent, is unable to manage property. A voluntary guardianship may be terminated by the ward.

Preneed Guardian, Florida Statute 744.3045

An adult who is competent may designate a person to serve as his or her guardian in the event that he or she becomes incapacitated in the future.

Guardian Advocate (Mental Health) Florida Statute 394.4598

The court may appoint a guardian advocate for a patient deemed incompetent to consent to mental health treatment.

Guardian Advocate (Developmental Disabilities) Florida Statute 744.3085

Guardian advocates assist persons with developmental disabilities. They may be appointed by the circuit court under this statute, or by the probate court under Florida Statute 393.12. Chapter 744 requires a three-member examining committee to make a recommendation that the person lacks certain capacities before a court can order appointment of a guardian.  Because the examiners may have little or no expertise in disability, the process may be much more time consuming and expensive for the petitioner. On the other hand, the potential ward has due process protections that do not exist under Chapter 393.

Guardian Advocate (Developmental Disabilities) Florida Statute 393.12

A Probate court may appoint a guardian advocate without an adjunction of incapacity if the person lacks the capacity to make some, but not all, of the decisions necessary to care for his/her person, property or estate. Any interested person may petition for the appointment of a guardian advocate.  The ward may also voluntarily petition. Only those rights the person cannot manage are removed. There is no requirement for an examining committee to be appointed, or for any court finding of incapacity of the ward before a guardian advocate is appointed. Instead, the Court may look at the individual’s support plan, their IEP or other documents to determine the level of disability and need for assistance.

ALTERNATIVES TO GUARDIANSHIP – ADVANCE DIRECTIVES

An Advance Directive is a document that expresses a person’s desires concerning healthcare, or other affairs. As the term indicates, this option is written in advance of the need.  The person must be competent at the time he or she signs the directive and capable of giving informed consent.

Durable Power of Attorney

Durable Power of Attorney is a legal document that gives the designated person the legal authority to make decisions of specific matters for the person who created it.  A durable power of attorney can be exercised until the death of the person who gave it, even if the person becomes incapacitated.

Living Will

A Living Will is another legal document that directs the providing, withholding, or withdrawal of life-prolonging medical procedures if you are unable to make your own decisions and you have a terminal illness or are in a persistent vegetative state.

Health Care Surrogate

A Health Care Surrogate is a written document naming another person as your representative to make medical decisions for you if you are unable to make them yourself.  You can include instructions about any treatment you want or do not want, similar to a living will.  You can also designate an alternative surrogate.  If you designate a health care surrogate and alternate be sure to ask them if they agree to take this responsibility, discuss how you would like matters handled, and give them a copy of the document.

It is important that any advance directive be witnessed by at least two individuals.  Laws on health care advance directives are in Chapter 765 of the Florida Statutes (available at your local library or at  www.leg.state.fl.us).

In evaluating whether a guardianship or powers of attorney are appropriate, a parent should consider the adult child’s mental capacity, the ability of the child to manage his or her own affairs, and the deprivation of rights imposed by a guardianship and advance directives. If the adult child has the capacity to execute powers of attorney, then that is a good first step. A formal guardianship may then be sought later, but only if needed.