Guardianship Law

I Have a Special Needs Child, How Do I Remain His Guardian?

If you have a special needs child, and he or she is turning 18, then you need to take proactive steps to remain your child’s guardian in the State of Florida.  Normally, a member of the family will make a request to the court.  That request, or petition, is asking the court to determine whether the special needs child who is turning 18 is, or is not, able to handle his own affairs.  If the court determines that a person with special needs cannot handle his own affairs, then a guardian needs to be appointed.  As the parent of the special needs child, you will want to be that guardian.

In this blog we will cover the details surrounding the process to remain the guardian of your special needs child.  Of course, because you will need to engage in a process before the court, the best thing you can do to ensure a smooth process is hire an experienced attorney.

Our attorneys at Doane & Doane are highly experienced guardianship attorneys.  In fact, a partner at our firm literally “wrote the book” on guardianships in the State of Florida.  Accordingly, we would be happy to discuss your guardianship case further with you.  Call us for a free consultation today at 561-656-0200.

The Difference Between Guardian Advocacy and Guardianship of an Adult

Generally, there are two types of guardianships for an adult under Florida law: Guardianship of an Adult and Guardian Advocacy.

  • Guardianship of an Adult.  This type of guardianship is intended for any adult who has a disability. This type of guardianship is a rather complicated process and can be more expensive compared to Guardian Advocacy, discussed below. To obtain guardianship of an adult, you need to make a request to the court to determine whether the disabled person has the ability to make decisions on his or her own. That inquiry requires the need for an examining committee that must evaluate the disabled person and make a recommendation to the court.  In fact, the members of the committee, made up of three medical professionals, will each prepare a report that has their recommendation on the disabled person’s capacity.
  • Guardian Advocacy Program.  The program in Florida known as Guardian Advocacy is less intrusive and less expensive than the Guardianship of an Adult process. Guardian Advocacy is particularly focused on people with developmental disabilities. With Guardian Advocacy, all you would need to do to remain the guardian of your adult special needs child is make a petition to the court to become your adult child’s guardian. The Guardian Advocacy program does not require a need for the court to determine the capacity of your child.

Knowing Whether Your Special Needs Child Qualifies for the Guardian Advocacy Program

There are two Florida statutes in particular that have important definitions with regard to special needs children.  First, a “developmental disability,” which is one of the requirements for the Guardian Advocacy Program, is defined as

A disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, 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.

Florida Statute 393.063(12).

Second, Florida law also indicates that the Guardian Advocacy Program is appropriate when a special needs child

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.

Florida Statute 393(2)(a).

Accordingly, if your special needs child fits within those two definitions, then Guardian Advocacy would be appropriate in your situation.

The Guardian Advocacy Process

As you would expect, there are a number of steps you need to follow in order to obtain guardianship for your special needs child who is turning 18.

  1. Attorney. The first step is to obtain the services of an attorney with experience in guardianship matters in the State of Florida.  It is possible that you could try to do the process on your own.  However, with a court process that is so specific as the Guardian Advocacy process, it makes the most sense to hire an attorney. The amount of time and frustration you may encounter trying to navigate through a system that is entirely new to you would likely be more costly (physically and emotionally) than the fee you would pay for the assistance of an attorney who can take care of everything for you.
  2. Petition.  Next, you would file a Petition to identify you as the Guardian Advocate with the court.  The term “Guardian Advocate” is simply the name of the guardian in the Guardian Advocacy Program.
  3. Attorney for your Child.  After your Petition is filed, the court will next appoint an attorney for your special needs child.  The court typically refers to that attorney as the “court-appointed attorney.”  The role of this attorney is to meet with you and your child, understand the circumstances and then advise the court as to whether Guardian Advocacy is the correct course of action, and whether you are an appropriate person to be the Guardian Advocate.
  4. Hearing.  After the court-appointed attorney has met with you and your child, the court will hold a hearing.  If the court-appointed attorney agrees that you should be the child’s guardian, then the court will appoint you the Guardian Advocate at the hearing.

As you can see, the Guardian Advocacy Program is most likely appropriate for you to remain as your child’s guardian if your child has special needs. Also, the court process involved for Guardian Advocacy is just a way for the court to check that you are the most appropriate person to stand in for your adult special needs child for important decisions regarding their personal and financial affairs.

At Doane & Doane, we have had extensive experience with guardianship matters, and a leading partner at the firm has taught the course on guardianship law in Florida for many years.  Accordingly, we have the background and resources to provide excellent representation in case you need to maintain guardianship over a special needs child who is turning 18 years old.  Call Doane & Doane today for more information at 561-656-0200.