A guardian is a surrogate decision-maker appointed by the court to make personal and/or financial decisions. After adjudication, the subject of the guardianship is termed a “ward.”
There are two main kinds of guardianship, those for a minor child and those for an adult (usually with mental and/or physical disabilities).
Guardianship for an Adult
Guardianships may be either regular guardianship or guardian advocacy. Guardian advocacy is particularly popular for adult children with developmental disabilities. Parents or other caregivers often seek to become the guardian advocate of their adult child rather than the guardian because the former does not require their child first be declared incompetent by the court. However, only a certain class of developmental disabilities qualify for guardian advocacy (including down syndrome, cerebral palsy, and autism). Regular guardianships for adults do require the court first determine the purported ward is incompetent.
Regular guardianships for adults are further divided into two categories, voluntary and involuntary.
A voluntary guardianship is where the potential ward agrees to have a guardianship imposed on him or her. These are relatively rare but they do serve a purpose, for example Medicaid planning that involves the creation of a first party special-needs trust.
Involuntary guardianship for adults are much more common. Under Florida law, guardianship is only warranted when no less restrictive alternatives, such as a durable power of attorney, a trust, a health care surrogate or proxy, or another form of pre-need directive, are found by the court to be appropriate and available. Furthermore, legislative intent establishes that the least restrictive form of guardianship is desirable. Guardianships (or Guardian Advocacies) can be limited or plenary. In a plenary guardianship, all of the rights that Florida Statute F.S. 744.3215 allows to be taken from the ward are in fact taken away. These are:
- To marry
- To vote
- To personally apply for government benefits
- To have a driver’s license
- To travel
- To seek or retain employment
- To contract
- To sue and defend lawsuits
- To apply for government benefits
- To manage property or to make any gift or disposition of property
- To determine his or her residence
- To consent to medical treatment
- To make decisions about his or her social environment or other social aspects of life
In a limited guardianship, less than all of the thirteen rights listed above are taken away from the ward.
The Role of Guardian Advocacy
When a child turns eighteen, the parents no longer have legal authority to make decisions on their behalf. However, a guardian advocate allows the parents, family, friends, or caregivers of a person with a developmental disability to obtain the legal authority to act on that person’s behalf. Unlike a full guardianship, a court does not have to declare the person “incapacitated.” Instead, the focus is on the individual’s “decision-making” ability. Also, the annual reporting obligations of a guardian advocate are less detailed than those of a guardian. In some instances (particularly if the purported ward does not have any property), it is not necessary to retain an attorney to file the initial guardian advocacy petition or to provide oversight during the duration of the guardianship. For regular guardianship, the person filing must be represented by an attorney.
The Role of Guardianship of Guardian Advocacy in Special Education
An important consideration for parents of children with developmental disabilities is knowing how to use guardianship, guardian advocacy (or where appropriate, a less restrictive alternative) to continue your involvement in your child’s education. Regardless of your child’s functioning level, once your child turns eighteen, the school district will treat them as an adult for purposes of making educational decisions in the school setting, including signing individualized education plans, agreeing to changes in placement, and addressing transition decisions. The school districts may decide to no longer notify you of meetings or changes that are being made, and you no longer have any procedural safeguards, including requesting a due process hearing. Those procedural safeguards are transferred to the student at eighteen. This is true for all students who turn eighteen, including non-verbal or lower functioning students. It is important to plan ahead and be prepared for this transition of rights, especially because some students can remain in public school until their twenty-second birthday. It is important for families to remain involved during this time period that is a critical transition for most students. Langer Law, P.A. can help you plan for this transition and maintain your right to be involved in your child’s educational decision making process until they leave the public school system.
Abuses of Guardianships
The potential for a guardianship to protect and help an individual and their family is just as strong as its potential to cause harm to an individual and their family. Unfortunately, it is not unheard of for individuals to begin guardianship proceedings in an attempt to gain control of an elderly person’s financial or medical decisions, including the re-writing of the elderly person’s Will or Trust. If you suspect someone is perpetrating this kind of abuse on an elderly person (or on yourself), it is important to contact an experienced attorney who can help you, or someone else, contest the guardianship proceedings.
Who Would be your Guardian?
If you, as an adult, loose capacity to make some or all the decisions related to your care, finances, and social life, a guardianship proceeding may be initiated for you. If before said event you had a properly drafted and executed Designation of Pre-Need Guardian, then the Court would give deference, and baring some very unusual circumstances where your choices are deemed to be in your best interest, would honor your decision and designate the person, or persons you nominated. You may nominate any adult, they need not be related to you. You may also nominate multiple individuals, though in practice, this is not always the best idea. You may also nominate alternates in case your first choice is unavailable or unwilling to serve. As part of an estate planning consultation, the attorneys at Langer Law, P.A. consult with you on this important document.
Such a document is also an appropriate place to disclose if you have executed other less restrictive documents that could eliminate the need for a guardianship, documents such as a Durable Power of Attorney and Designation of Health Care Surrogate.
Guardianships for Minors
In Florida, until the age of eighteen, natural or adoptive parents are the legal guardians of a child. However, if a child looses both his natural or adoptive parents, the courts are required to appoint a new guardian or guardians. If the parent or parents signed a validly executed designation of pre-need guardian for their child before they passed away (or became incapacitated), the courts typically honor the wishes of the parents and appoint the designated individual. This new guardian will serve until the child reaches eighteen, and he or she will be guardian over all aspects of the child’s life, over her person and her property.
But, there is another form of guardianship that exists for minor children. It is a guardianship over only the child’s assets. This form of guardianship is required under Florida law whenever a minor receives (typically from an inheritance or a personal injury settlement) over $15,000. In these instances, the child is required to have a guardian to control the assets until he or she turns eighteen. If either natural or adoptive parents are alive, they are usually the ones appointed.
Langer Law, P.A. has experience with all the forms of guardianship and guardian advocacy mentioned above; during the initial petition phases, and also during the proceedings and after letters of guardianship have been issued. We can also be of assistance if disputes arise, and are committed to providing you and your family with competent advice concerning this very sensitive topic. Contact us today to schedule a consultation.