18 Sep Your Disabled Adult Relative May Need A Guardian Advocate
If you have a child or a loved one with a developmental disability who is not totally incapacitated, becoming a guardian advocate may help you protect their interests. As their parent or loved one, you may be used to making most of the important life decisions for them. But, when a child turns 18, everything changes. Because by law your child is now an adult, and legally capable of making his or her own decisions, you will no longer have the legal right to advocate for them. To protect the interests of your loved one, you may want to become a guardian advocate.
Don’t know if a guardian advocate right for your loved one? Read our guide on the who, what, when, and how of Guardian Advocacy:
Who can be a Guardian Advocate?
In Florida, a Guardian Advocate must be:
• At least 18 years old.
• A resident of Florida (unless they are a spouse, blood relative, legally adopted child, parent of the disabled person, or a spouse of the blood relative or legally adopted parent or child of the disabled person).
• Has not been convicted of a felony.
• Is capable of discharging the duties of a guardian (is not incapacitated or ill).
• Is not a provider of health care services to the ward.
Who may need a Guardian Advocate?
People who may be in need of a Guardian Advocate may include:
• A person with a developmental disability that lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or
• A person who voluntarily requests a Guardian Advocate.
What is a Guardian Advocate?
A Guardian Advocate is someone appointed without a finding of incapacity. The Guardian Advocate acts for a person with developmental disabilities if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or if a person has voluntarily requested for the appointment of a guardian advocate.
What constitutes a Developmental Disability?
A Developmental Disability is a disorder or syndrome that is associated with intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan McDermid syndrome, or Prader-Willi syndrome that presents before the age of 18 and constitutes a substantial handicap indefinitely.
When is the best time to petition the court to appoint a guardian advocate?
Until a disabled person becomes turns 18 years old, their parents are their natural guardians and a Guardian Advocate is not required. After the person’s eighteen birthday, those natural rights dissolve and a court order is required for the parent or guardian’s decision-making authority to continue.
A petition to appoint a Guardian Advocate can be filed any time after the disabled person turns 17 years and 6 months old. This allows time for the process to be complete by their 18th birthday.
Why does a Developmentally Disabled person need a Guardian Advocate?
Parents, as natural guardians of their children, can make decisions for their disabled child. However, once the person reaches 18, parents are often not permitted to make medical, financial, and other important decisions on behalf of their disabled child unless they are awarded legal status by the courts.
Why a Guardian Advocate and not a Guardian?
Florida law recognizes the Guardian Advocate as a less restrictive alternative to Guardianship and requires the court to pursue less restrictive alternatives when possible.
There are several vehicles that could be useful in obtaining rights to advocate for a loved one, and you should contact an attorney who can assess your individual case.
How to become a Guardian Advocate?
In order to become a Guardian Advocate, you must:
• Complete an Application for Appointment as Guardian Advocate
• Complete Notice of Petition for the Appointment of Guardian Advocate and Appointment
• Petition for Appointment as Guardian Advocate of the person
• Order Appointing Attorney and Elisor
• Oath of Guardian Advocate, Designation and Acceptance of Resident Agent
Although an attorney is not required for this process, we recommend that you consult with an attorney to help navigate you through the procedural process.
If you would like to contact Sara Jones Law, P.A., we would be more than happy to lend a helping hand, and guide your family through this process.