What is a Guardian Advocate?
As a guardian advocate, special needs parents can get full guardianship for their child with an expedited process that may not require hiring an attorney.
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Katie is 30 and has a developmental disability from a rare genetic syndrome called Cri du Chat. Anyone who meets Katie would describe her as “high functioning.” Katie’s mom, Laura, had thought about getting guardianship, and even went as far as having a family member prepare the paperwork.
But it was expensive proceed with it, and a nuisance to go through the filing process, so Laura put it off.
“I’m always with Katie for important things, like doctor appointments, so I could ask Katie to give me permission whenever consent was needed," says Laura. "So there really was no pressing need to get guardianship.”
But an incident with a door-to-door salesperson influenced Laura’s decision to move forward with it.
Laura was at a work and Katie had let herself into the family home after her day program let out. A door-to-door salesperson rang the doorbell. Katie answered the door and let the person into their home.
Thankfully, Laura’s husband was in the driveway finishing up a phone call in his car. Katie’s dad rushed in to see what was going on, and the salesperson said to him, “well, the lady of the home invited me in.”
Warning: When Your Child Turns 18 You Lose Parental Rights
Most well-informed special needs parents know, if only vaguely, that when their child is about to turn 18 they need to starting thinking about guardianship. Maybe that’s why you are reading this article.
But few parents fully understand why.
When your child is born, you have what’s known as “natural guardianship”, which means that you have the right to make any and all major decisions for your child. This includes things like consenting for medical treatment, entering into contracts and getting married.
In Florida, when a child turns 18, they reach what is referred to as the “age of majority.” Notwithstanding your child’s disability, he or she gains almost all of the legal rights that adults have, and your rights to make major decisions for them ends.
With these rights come the consequences of potentially getting sued in court, being prosecuted as an adult for crimes, or accepting the risk of denying medical treatment.
So, despite the fact that you have cared for you child since their birth, according to the law, after their 18th birthday you’ll need to get an order from a court in a guardianship proceeding to continue to make decisions about their health, welfare and finances.
So, if Katie made an expensive commitment to the travelling salesperson, she’d be responsible for fulfilling the terms of the contract or risk getting sued.
Ultimately no harm was done, but the experience was enough to motivate Katie's mom, Laura, to complete the guardianship paperwork.
Guardian Advocate: An Expedited Guardianship Proceeding for People with Developmental Disabilities
What is a guardian advocate?" is one of the most frequently asked questions by parents of children with disabilities.
If you get guardianship over your child, you obtain the right of “substitute judgment," that is, the ability to make all decisions for your child if they were competent to make the decisions on their own.
What this really means is you regain the right to do for your child what you have been doing all along as a good parent.
But getting guardianship is a serious process, requiring an exhaustive court filing and the assembly of an examining panel that determines whether a person is “incompetent”. Plus, you are required to hire a lawyer.
However, if your child has a developmental disability such as autism, cerebral palsy, spina bifida or Down Syndrome, in Florida, you can obtain guardianship through an expedited proceeding called “guardian advocacy.”
As Guardian Advocate, You Get the Same Rights as With Traditional Guardianship
A guardian advocate has the same exact rights that you would get with a traditional guardianship. But with a more streamlined process.
Under the guardian advocate program a decision about competency is made by the judge and is based on a medical diagnosis. No examining committee is appointed and no written findings are drafted. A judge can use an educational evaluation or IEP to determine what responsibilities you will have as guardian advocate, and what responsibilities your child will retain.
The best part, unlike traditional guardianship, there is no requirement to be represented by a lawyer (as long as you are not managing any property other than your child’s government assistance).
The forms can be intimidating, and there are many of them, so there is still value in working with an attorney. At the very least, getting assistance from someone who is familiar with the process will help you avoid mistakes, delays (and unnecessary stress). Also, using a comprehensive guide, like this free guardian advocate guide from the Twentieth Circuit Court, is highly recommended.
Under the guardian advocate statute, your child will need their own attorney who is appointed by the court. Depending on when you file and the assets owned by your child, you may be responsible for this cost, your child may be responsible for it or you may qualify for a fee waiver.
In all, becoming a guardian advocate is a reasonably streamlined process that can take about four months to complete.
Once approved, the judge will give you “letters” that will describe exactly what legal rights you have. You will bring the letters with you when you make decisions on behalf of your child, like at the bank or a doctor’s office. Afterwards, you will have some additional obligations, including taking a guardianship course, filing an accounting of your child’s assets and submitting annual reports to the court.
After Becoming Guardian Advocate, It’s Business As Usual
In reality, most parents report that, after becoming a guardian advocate, not much changes with respect to parenting their child. To the extent possible, most parents still have their child participate in all decisions and there is very little to do to stay in good standing with the court.
As for Katie and Laura, the scare with the travelling salesperson was enough to motivate Laura to get guardianship. Though she had the paperwork prepared already, for her family situation, it made more sense to hire an attorney to to guide them through the process. Laura now has guardianship for Katie and both are doing great.