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Guardian Advocate for Adult Children with Developmental Disabilities

| May 6, 2020 | Estate Planning, Family Law |

Children with certain conditions such as autism, autism spectrum disorder (ASD), or Down syndrome require special planning in order to meet their needs. This becomes particularly true once the child reaches the age of majority—in Florida, age 18. During the years the child was growing up, the parents may have made decisions regarding the child’s medical care and financial needs. However, upon becoming an adult, the child is emancipated. A parent no longer has legal power or authority to speak for the child and in most cases, is limited in what the parent can do for the child.

Take, for example, a boy who is on the ASD spectrum and who cannot handle his finances or make medical decisions for himself. If the boy is a minor, there is usually no problem with the parents acting on behalf of the child. But when the boy reaches age 18, this can change. Third parties such as medical providers and hospitals may question the parents’ authority to make decisions now that the child is an adult. So what options are available to a parent in order to be able to act for his or her adult son?

One option is to file a plenary Guardianship where the parent seeks to be appointed as Guardian of the person and property of the adult child. The problem with this approach is that it is very heavy handed and can be hard on the child and the family. In a plenary Guardianship case, the court must first appoint an examining committee—three professionals (such as a physician, a mental health counselor, and a social worker)—to examine the child and issue a written report finding the child to be incapacitated and incapable of handling their own affairs. This process can be humiliating and degrading to the child. In addition, the child is stigmatized by being officially declared incapacitated.

There must be a better way—and there is! Florida has a statutory provision that allows for the appointment of a Guardian Advocate.  Section 744.3085, Fla. Stat. provides as follows:

A circuit court may appoint a guardian advocate, without an adjudication of incapacity, 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 the person has voluntarily petitioned for the appointment of a guardian advocate.

The first thing to notice about this statutory provision is that it applies to a person with “developmental disabilities.” That term is defined in Chapter 744 as meaning a “disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, 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.” So there are some limitations on when a Guardian Advocate can be appointed. For example, it would not apply to an elderly person suffering from dementia—in that case, a full-blown plenary Guardianship would likely be necessary. However, the Guardian Advocate is a perfect fit for parents who have a child with autism, or one of the other listed conditions, and who is reaching age 18.

The procedure for appointing a Guardian Advocate differs significantly from that of appointing a plenary Guardian. Most notably, the court does not appoint an examining committee and does not make an adjudication of incapacity. This makes the process far less humiliating, degrading and stigmatizing to the adult child. Usually the court will require that the person applying to be appointed as Guardian Advocate file a “Report of Attending Physician.” This document sets forth the child’s condition and is certified by the child’s physician. In most cases, this is sufficient to demonstrate the child’s need for a Guardian Advocate.

Once the Guardian Advocate has been appointed for the child, he or she may act on the child’s behalf in a wide-array of circumstances. This could include making medical decisions, doing the child’s banking, paying bills, and making arrangements for housing and other care. Many times, these would be services that the parent could not accomplish when their child becomes an adult.

If you know parents who have a child with developmental disabilities, and particularly if the child is nearing adulthood, please share this article with them. The lawyers at Lins Law Group, P.A. would be happy to speak with them and to offer counsel—regardless of whether they hire us!

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