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Adult Child with a Disability? Petition for Appointment as Guardian Advocate

| Nov 25, 2020 | Estate Planning, guardianship |

Parents with children who have disabilities such as autism, cerebral palsy, or Down syndrome, among others, will face a dilemma when those children become adults at age 18. The parents will no longer have authority or power to act on behalf of those adult children. Things like authorizing medical treatment or doing the child’s banking can become a problem. One answer to this situation could be to seek to be appointed as guardian advocate. In Florida, a guardian advocate is a person appointed by a written order of a court to represent a person with developmental disabilities.

A guardian advocate can be appointed when a person lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property or if the person has voluntarily petitioned for the appointment of a guardian advocate. An important distinction between a guardian advocate and a plenary guardian is that the guardian advocate can be appointed without the embarrassment and inconvenience of a full-blown incapacity determination. In other words, there will be no court order determining that the child is incapacitated and therefore should have their rights removed.

So how does a guardian advocate get appointed? It begins with the court filing of a Petition for Appointment of Guardian Advocate. The Petition must be filed by an adult who is a resident of Florida. The required Petition must be verified (signed under oath) and must contain the matters set forth in Section 393.12, Fla. Stat. This statutory section provides that the Petition must:

(a) State the name, age, and present address of the petitioner and his or her relationship to the person with a developmental disability;

(b) State the name, age, county of residence, and present address of the person with a developmental disability;

(c) Allege that the petitioner believes that the person needs a guardian advocate and specify the factual information on which such belief is based;

(d) Specify the exact areas in which the person lacks the decision-making ability to make informed decisions about his or her care and treatment services or to meet the essential requirements for his or her physical health or safety;

(e) Specify the legal disabilities to which the person is subject; and

(f) State the name of the proposed guardian advocate, the relationship of that person to the person with a developmental disability; the relationship that the proposed guardian advocate had or has with a provider of health care services, residential services, or other services to the person with a developmental disability; and the reason why this person should be appointed. If a willing and qualified guardian advocate cannot be located, the petition shall so state.

Once the Petition is filed, a hearing will be scheduled with the local Probate and Guardianship Division of the Circuit Court. This is one reason that when petitioning for  appointment as a guardian advocate, the person seeking appointment should consider seeking representation by an experienced attorney who can guide them through the process and represent him or her at the hearing.

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