Many people assume that because their youngster has a disability they automatically have legal Guardianship over the child. And that is true, at least until their son or daughter turns eighteen.

However, every person the age of eighteen or over is automatically presumed to have the legal rights of an adult no matter what their abilities, their financial status, or their residential placement, whether at home, in a group home, or living independently. In order to become someone’s Guardian a parent or sibling must go to Court and petition to become responsible for that person. They must demonstrate to the Court that the disabled person is incapacitated — that they are unable to act responsibly on their own behalf.

Merely setting up a Trust, becoming a Trustee, becoming a Power of Attorney, or being someone’s Representative Payee for Social Security purposes does not make you a Guardian even if you may have effective control of the disabled person’s finances and provide for all their needs.

Assuming Guardianship over a disabled individual is one of the most life-changing decisions anyone has to face. Guardianship imposes strict limits on what the disabled person (called the “Ward”) may do throughout their lifetime.

Once under a Guardianship a Ward generally cannot manage their own personal affairs at all. They cannot choose where and how to live. They cannot work, save money, or make purchases on their own even of the most necessary personal items. They cannot vote. They cannot marry. They can’t even go to a restaurant on their own volition. In short, every decision of their life must be made by someone else: The Guardian.

This imposes a tremendous responsibility on the Guardian, but the Guardian’s responsibilities do not end there. A Guardian must make detailed periodic reports to the Guardianship Court, and must be prepared to answer any and all questions about every aspect of the Guardianship, and especially about every penny spent on the Ward’s behalf. Most jurisdictions require that the Guardian permanently retain a Guardianship Attorney to work on their behalf to prepare and sign off on all required documentation. This amounts to an ongoing expense that may last for decades.

In Florida and other States, Guardianships usually require that the Guardian pass a background check, attend special classes, and file annual accountings and reports. These are complicated, time-consuming, and expensive procedures. Courts are usually intolerant of Guardians who cannot meet their sometimes difficult deadlines.  This can result in additional expense to the Guardian (at the least) and severe sanctions (at the worst). 

The National Council on Disability recently prepared a report, Beyond Guardianship, which concluded that Guardianship procedures are often overused, misapplied, unnecessarily complex, and prohibitively expensive. The NCD approved several alternatives, some of which the National Special Needs Network has used for years. We are gratified to discover that we have been on the cutting edge of developments in this field.

For higher-functioning cognitively-impaired individuals and for otherwise-neurotypical persons with disabilities, a package of Special Needs Advance Directives  that are individually-crafted to their unique circumstances is a much less expensive, simpler, and faster way to protect their interests.

Whether a Guardianship is the right alternative depends on several factors, the most important being the ability of the presumptive Ward to function in their everyday life. If a Ward is in a vegetative state or is profoundly mentally impaired, then Guardianship is likely the best — perhaps the only — option to ensure they get the proper care and supervision. If you are contemplating establishing a Guardianship you need to discuss the specific details of your situation with your Attorney to determine what form of Guardianship is most appropriate.

There are two different Guardianship Statutes in Florida (and in many other states of the Union), and before anything else you need to know under which Guardianship Statute you will be filing.

Florida Statutes Chapter 744  is the Mental Health (MH) Guardianship statute, for persons suffering from psychiatric disabilities.

Florida Statutes Chapter 393 is the Developmental Disabilities (DD) Guardianship statute  for persons suffering from cognitive impairments such as Mental Retardation, physical impairments such as Cerebral Palsy, and other non-psychiatric conditions.

These Statutes are different and mandate different requirements for the two populations. As an aside, many Attorneys who do not routinely practice Guardianship Law are unfamiliar with, or less familiar with, Chapter 393 of the Florida Statutes or DD Guardianships in general. When discussing the prospective Ward’s disability, make certain you are working with the proper Statute. Filing under the “wrong”statute may impact or limit your ability to act in the best interests of the Ward.

There are three classes of Guardianship. They are Guardianship of the Person, Guardianship of the Property, and Guardianship of the Person and Property.

Guardianship of the Person allows the Guardian to make decisions on behalf of the Ward (the incapacitated person) in regard to such things as his residence, his medical treatment, his leisure activities, his employment, and his daily routines—in short, in virtually all areas of the Ward’s life.

Guardianship of the Property is more limited. It allows the Guardian the discretion to manage only the Ward’s financial affairs.

Guardianship of the Person and Property combines the power of fiscal and personal decisionmaking. It is the most common form of Guardianship for the obvious reason that an incapacitated person who cannot make personal decisions almost always cannot make financial decisions.

Any of these three classes of Guardianship may be Plenary or Limited

Plenary Guardianship is total. The Ward retains no rights whatsoever.

Limited Guardianship is, as its name implies, limited. The Ward retains some rights. Often Guardians prefer to allow Wards to retain the right to vote under the logical consideration that voting is empowering to the person, and that in any case, an incapacitated person’s choices in this area can be no better or no worse than anyone else’s. Other rights may also be retained according to a listing included in the Guardianship petition.

Guardianships can also be Temporary or Permanent, depending on the circumstances of the Ward.

Guardian Advocacy is a specialized form of Guardianship created specifically for the developmentally disabled in Florida and other select states. It does not require the Court to make a determination of incapacity. It may be voluntary or involuntary.

 In a voluntary Guardian Advocacy, the disabled person himself acts as the petitioner and voluntarily surrenders some or all of his rights to a trusted person, generally a parent. 

 In an involuntary Guardian Advocacy, the parent or Guardian petitioner files the required paperwork on behalf of the Ward. 

Guardian Advocacy usually has the same reporting requirements as other forms of Guardianship.

It is critical to remember that the kind of Guardianship you will need is dependent on the Ward’s functional capacity, so it is in everyone’s best interest to discuss with the Attorney the various available options and alternatives.

Call us with any questions.