FAQ Special Needs & Guardianship

Guardian Advocacy is a less restrictive process that allows a guardian, typically a parent, family member, or close friend, of an adult who was diagnosed with a developmental disability prior to the age of 18, to obtain legal authority to act on the individual’s behalf with regard to certain rights. These rights typically allow the guardian advocate to apply for public benefits on behalf of the Ward, determine residency, as well as make financial, social, medical, and educational decisions on behalf of the Ward.

Unlike Guardianship, Guardian Advocacy does not require the first step of determining incapacity. Rather, the individual’s developmental disability diagnosis and medical information can be provided to the court for review and consideration. Like Guardianship, the developmentally disabled person will be appointed an attorney to represent their best interests in court. Guardian Advocacy is also somewhat less restrictive, ensuring the developmentally disabled person retains many of their rights and autonomy.

Guardian Advocacy is a tool typically utilized by parents who have developmentally disabled children who are about to or have recently transitioned to adulthood to maintain consistent communication with doctors and other medical providers, schools, and social services.

It must be noted, Guardian Advocacy is still very restrictive and the court requires the least restrictive option when deciding whether or not to appoint a Guardian or Guardian Advocate. Contact Simpson Legal Solutions today to see if Guardian Advocacy is the right fit for you and your loved ones.

Florida Statutes define developmental disability if a person has been diagnosed with “intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome.” Florida Statutes § 393.063(11).

Yes, each year guardians and guardian advocates are required to comply with the annual reporting requirements. Such requirements include an annual guardianship plan to provide updates that could include the condition of the ward including their address, residential setting, medical and mental health, social condition, and education, if applicable, all depending on the type of guardianship. The reporting is typically accompanied with a report from a physician as to current condition of the Ward and recent medical treatments. Except in specific circumstances where there is no property, there is also an annual accounting requirement to document how the Ward’s property was used during the previous reporting period. The court may require inspection and review of receipts, proof of payment, or substantiating papers.

Yes! There are several alternative options that may be available to you and your family, depending on your specific circumstances and situation. These alternatives can include:

• Living Wills;
• Powers of Attorney;
• Designations of Healthcare Surrogates; and
• Supportive Decision Making Agreements.

For more information on Supportive Decision Making, click the link below to Disability Rights Florida:

https://disabilityrightsflorida.org/disability-topics/disability_topic_info/what_is_supported_decision_making

To help you decide which option is best for you and your family, contact Simpson Legal Solutions today. We’ll walk you through the scenarios and help you come to a decision on how to proceed in a way that will best support the individual while protecting their constitutional and human rights.

There are two types of preneed guardians – one for adults and one for minors.

As an adult, you may wish to designate a preneed guardian now in the event of your future incapacity. This is a written declaration that meets statutory requirements and is filed with the clerk of court. Should your future guardian seek to petition the court to determine incapacity, the clerk will produce the declaration and it shall constituted a rebuttal presumption that the individual you specifically designated is entitled to serve as guardian so long as they meet other statutory requirements. This allows the preneed guardian to assume all duties of the guardian immediately upon adjudication of incapacity and allow 20 days for the guardian to then file a petition for confirmation of appointment.

For minors, a preneed guardian designation allows parents, natural or adoptive, to nominate an individual of the person or property (or both) should the last surviving parent become incapacitated or dies. Like adult preneed guardian designations, this must be a written declaration that meets statutory requirements and is filed with the clerk of court. When a petition, either relating to incapacity or death of the last remaining parent is filed, the clerk produces the declaration, and it constitutes a rebuttal presumption that the designated preneed guardian is qualified and entitled to serve as guardian of your minor child so long as they meet other statutory requirements. As with adult guardianship, this allows the preneed guardian to assume all duties of the guardian immediately upon adjudication of incapacity or death of last surviving parent for the guardian to then file a petition for confirmation of appointment.