Law Office of Heidi M. Crimins
Once your child reaches the age of 18 years of age in the State of Florida, they are considered to be adults and parents can no longer legally make decisions for them, even if you have a child with disabilities that requires much care.
What is Guardian Advocacy?
Guardian Advocacy is a legal process through which parents, family members, or friends of individuals with a developmental disability can obtain the legal authority to act on the individual’s behalf. Guardian Advocate appointments are governed by section 393.12 of the Florida Statutes. Guardian Advocate is distinguishable from the types of guardians (limited, plenary, or voluntary) that are appointed under chapter 744, Florida Statutes
What is the purpose of Guardian Advocacy?
A parent is the natural guardian of his or her child until that child reaches 18 years of age, the age of majority. Every individual is considered an adult in the eyes of the law when they reach the age of majority, regardless of disability or individual circumstances.
Guardian Advocates are often necessary when parents or caretakers need access to information needed to make decisions for their adult child or loved one that has a developmental disorder.
A person with a developmental disability needs a Guardian Advocate if the person lacks the ability to make the decisions necessary for everyday life.
Who is developmentally disabled?
Under section 393.063(9), Florida Statutes, developmental disability is defined as “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 person with the developmental disability for whom a Guardian Advocate is appointed will be known as the “Ward.”
What are the powers and duties of a Guardian Advocate?
A Guardian Advocate for a person with a developmental disability shall have the same powers, duties, and responsibilities required of a guardian under chapter 744, Florida Statutes or as defined by the judge in the Order Appointing Guardian Advocate. The judge may require the Guardian Advocate to file an Annual Accounting. If the Guardian Advocate is the representative payee for the Ward’s Social Security benefits and those benefits are the Ward’s only property, the judge may, in his or her discretion, waive that requirement.
Who may Petition the Court to Appoint a Guardian Advocate?
A person who is an adult and a resident of the State of Florida must execute the Petition to Appoint Guardian Advocate. This person is called the “Petitioner.” The Petitioner may or may not be the same person as the proposed Guardian Advocate. If no “willing and qualified” Guardian Advocate can be located, the Petitioner may specify that in the Petition.
Who may serve as a Guardian Advocate?
The qualifications to serve as a Guardian Advocate are the same as those required of any guardian under chapter 744, Florida Statutes. Any resident of the State of Florida who is 18 years old and of sound mind is qualified to act as Guardian Advocate, unless they fall within any category in the next section. A person who is a non-resident of Florida may serve as a Guardian Advocate if he or she is related to the Ward by blood, adoption, or law, according to section 744.309(2), Florida Statutes. The Court will also consider the wishes expressed by a developmentally disabled person as to whom will be appointed as the Guardian Advocate.
Who may NOT serve as a Guardian Advocate?
Any person who falls within one or more of the following categories may NOT be appointed as Guardian Advocate:
1. Any person who has been convicted of a felony.
2. Any person who, from any incapacity or illness, is incapable of discharging the duties of a Guardian Advocate, or who is otherwise unsuitable to perform the duties of a Guardian Advocate.
3. Any person who has been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in sections 39.01 and 984.03(1), (2), and (37), Florida Statutes.
4. Any person who has been found guilty of, regardless of adjudication, or entered a plea of no contest to any offense enumerated in section 435.14, Florida Statutes or under any similar statute of another jurisdiction. This section enumerates offenses that will cause a person to fail a Level 2 background screening, which may be required before appointment as a Guardian Advocate, as detailed below.
5. Any person who provides substantial services to the proposed Ward in a professional or business capacity, or is a creditor of the proposed Ward.
6. Any person who is an employee of any person, agency, government, or corporation that provides services to the proposed Ward in a professional or business capacity, except that a person so employed may be appointed if he or she is the spouse, adult child, parent, or sibling of the proposed Ward or the Court determines that the potential conflict of interest is insubstantial and that the appointment would clearly be in the proposed Ward’s best interest.
7. Any provider of health care services to the proposed Ward, whether direct or indirect, unless the Court specifically finds there is no conflict of interest with the proposed Ward’s best interests.
Do I have to submit to a background investigation?
Yes. Section 744.3135, Florida Statutes, requires all guardians seeking appointment by the Court, with some limited exceptions, to acquire, at their own expense, a credit history investigation and to undergo a Level 2 background screening. Under certain circumstances, the Court may waive these requirements.
Will I be required to receive instruction or training?
Yes, each person appointed as a Guardian Advocate must complete the required number of hours of instruction and education within four (4) months after his or her appointment, at his or her own expense. The training must be completed through a course approved by the Chief Judge of the Circuit Court and taught by a court-approved organization. Court-approved organizations may include, but are not limited to, community or junior colleges, guardianship organizations, and the local bar association or The Florida Bar.
Will I be required to file annual reports with the Court?
Yes. A Guardian Advocate must file an Initial Report within 60 days of appointment pursuant to sections 744.361 and 744.362, Florida Statutes. The initial report must include a statement of medical, mental, or personal care services of the Ward, and a statement of the place and kind of residential setting best suited for the needs of the Ward. The Initial Report should include any expected physical and mental examinations, if necessary to determine the Ward’s medical and mental health treatment needs.
In addition, a Guardian Advocate must file a report each year. The Annual Report must be filed within 90 days prior to the anniversary date of appointment as Guardian Advocate. The Annual Report must include information concerning the residence of the Ward, the medical and mental health conditions, treatment, and rehabilitation needs of the Ward, and the social condition of the Ward. If the Ward has a cost plan utilized in receiving services from the Agency for Persons with Disabilities, the cost plan can be submitted as part of the Annual Report.
It is recommended that one consult with an attorney prior to starting the process to find out if there are alternatives, to get answers to specific questions about the process, and/or to get help reviewing and completing the forms. Contact the Law Office of Heidi M. Crimins today for a free consultation regarding Guardian Advocate in Volusia, Flagler and Seminole Counties. Call today (386) 873-2756. The information provided above should not be relied upon as legal advice, it is for informational purposes only. Each family and individual's circumstances are unique and the above information may not apply to you.