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  • Writer's pictureJeff N. Eckert

Guardian Advocacy Makes Florida Unique!

Updated: Jul 7, 2019

Guardian Advocacy is specifically for persons with developmental disabilities

For family members of a person with a developmental disability, there is often a great deal of anxiety and uncertainty during the time when your child turns 18, and becomes a legally "competent" adult. One area in which Florida has made the burden easier for family members of a child with a developmental disability is by providing the Guardian Advocacy process.

This means that family members, friends, or caretakers do not need to go through the lengthy and expensive full Guardianship process to assist and protect the person with a developmental disability. Instead, the incapacity determination is simplified as long as the person has a qualifying developmental disability which includes: 1) intellectual disability, 2) cerebral palsy, 3) autism, 4) spina bifida, 5) Down syndrome, 6) Phelan-McDermid syndrome, or 7) Prader-Willi syndrome. Additionally, the developmental disability must manifest before age 18 and "constitute a substantial handicap that can reasonably be expected to continue indefinitely."

Chapter 393 of the Florida Statutes provides statutory protections for persons with developmental disabilities in the state. This chapter also includes the Bill of Rights of Persons with Developmental Disabilities. Here, the Florida legislature has created an alternative to the Guardianship process in which most of the same rights and responsibilities of Ch. 744 Guardianship can be conferred upon the Guardian Advocate. The primary distinction is that an examining committee is not necessary to make a determination of incapacity in Guardian Advocate proceedings. For Guardian Advocacy, documentation from a medical doctor or provider of the person's diagnosis is required.

Families must consider less restrictive measures before applying to be a Guardian Advocate

However, verifying the developmental disability is only the first step in the two-step process. Like all of us, persons with developmental disabilities can have a wide range of capacities. In legal speak, as long as a person can understand the nature of the decision at hand, the risks and benefits associated with available options and the potential consequences of his or her choice, then it is generally understood the person has capacity to make that decision. In other words, a person should not be presumed to lack capacity merely because (s)he has a developmental disability. Therefore, along with the establishing the person has a developmental disability, the court must determine "if the 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."

Similar to the Least Restrictive Environment (LRE) concept in special education, the court seeks to ensure that the least restrictive means are put in place to protect the person with a developmental disability. The need to take away the person with a developmental disability's civil rights should be balanced against the desire to enable self-determination and person-centered planning to the extent possible.

Some alternative methods for assisting and protecting persons with developmental disabilities that are available and range in restrictiveness include: Supported Decision-Making (least restrictive) ➙ Banking Services ➙ Power of Attorney ➙ Representative Payee ➙ Advance Directives ➙ Medical Proxy ➙ Trusts ➙ Guardian Advocacy ➙ Guardianship (most restrictive).

Guardian Advocates are given nearly the same rights as a typical Guardian

As in Guardianship proceedings, the rights that are transferred to the Guardian Advocate of the person or property may include the right:

1) To contract

2) To sue and defend lawsuits

3) To apply for government benefits

4) To manage property or to make any gift or disposition of property

5) To determine his or her residence

6) To consent to medical and mental health treatment

7) To make decisions about his or her social environment or other social aspects of his

or her life

Again, keep in mind that the person with a developmental disability needs to only lack some, but not all, of the ability to make decisions in the above listed areas. Ultimately, parents, family members, and professionals with knowledge of the person with a developmental disability will be in the best place to help the court understand the capacity of the person in question. Also, the person applying to become a Guardian Advocate must complete a Level 2 background screening and credit check prior to the final hearing, and take an eight-hour Guardian education training within four months of her or his appointment as the Guardian Advocate. There are also relocation requirements that Guardian Advocates should be aware of in the event that the person with a developmental disability wants to move within the state or to another state.

Overall, Guardian Advocacy aligns with the legislature's intent that "by recognizing that every individual has unique needs and differing abilities," a process can be utilized that promotes persons with developmental disabilities in "participating as fully as possible in all decisions affecting them, meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources, developing or regaining their abilities to the maximum extent possible, and interfering least with the legal capacity of a person to act in her or his own behalf."



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