What is the difference between a Guardianship and Guardian Advocacy?

In Florida, a Guardianship is a legal way to protect someone’s health, welfare and property when that person has lost the ability to make decisions for themselves (financial decisions, where they should live, healthcare decisions, etc).  In a Guardianship, a court decides what rights are removed from an individual and the court appoints someone who will make the decisions for that individual.  The person whose rights are removed is called the “ward”.  The person who is given the authority by the court to make decisions for the ward is called the “guardian”.

Before someone’s rights can be removed, an examining committee of three people must be appointed to meet with the Ward and evaluate him or her to determine if they are incapacitated, and if so, what rights should be taken away.  The court also appoints an attorney to represent the Ward and make sure that the guardianship is in his or her best interests.  It is always the court’s desire to use the least restrictive means to help the Ward and therefore, guardianship is a very serious step and should be taken only as a last resort.  The guardianship statute is laid out in Chapter 744, Florida Statutes.

Guardian advocacy, by contrast, is a process designed to help meet the needs of those with developmental disabilities.  Where a guardianship can deal with any individual who is incapacitated (whether they are infirm, a minor child, or someone who has some other disability), the guardian advocacy program is specifically for those individuals with a “developmental disability” which is defined by Florida Statutes, Section 393.063(9) to be 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.”

Thus, a guardian advocacy proceeding is specifically for an individual who has one of the five conditions listed above and who lacks the ability to make some (but not necessarily all) of the decisions necessary for that person’s health, property or estate.

Another difference between guardianship and guardian advocacy is that the court, in a guardian advocacy proceeding do not have to determine the person to be incapacitated.  Thus, no examining committee is appointed to evaluate the person and make written findings.  Instead, the judge can use an educational evaluation or individual education plans (IEP) to address the person’s incapacity and determine what rights the guardian advocate must exercise.  Additionally, while the guardian in a regular guardianship proceeding must always be represented by an attorney, the guardian advocate does not need to be represented by an attorney unless the court requires or unless the guardian advocate is exercising rights over the person’s property.

Essentially, the guardian advocacy program is an excellent program for parents who have disabled children (but only those disabilities listed in the statute – retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome) whose child has turned 18 and still needs their parent to help them with financial, school or health issues.  Of course, if should also be noted that, if the child is able to give informed consent and sign a document, court proceedings (via either guardianship or guardian advocacy) can be completely avoided by having the adult child sign a durable power of attorney, living will and health care surrogate designation which would give the parent the same powers.

 

For over 20 years, Laurie Ohall has been serving the legal needs of Tampa Bay area families. Ms. Ohall is a Florida Board Certified Elder Law Attorney, and is also licensed in the state of Ohio.  It is her mission in the practice of law to protect, honor and educate her clients.  She advocates on behalf of her clients in the areas of Medicaid Reform and resident’s rights (in ALFs and nursing homes). She also provides clients with comprehensive estate planning including wills, trusts, special needs advocacy, advanced healthcare directives, and gives Tampa area seniors and their children piece of mind as they navigate Florida Elder Laws. Her blog is updated regularly to educate Florida residents about the laws affecting seniors, estate planning and probate.

 

By | 2014-05-07T13:48:32+00:00 May 7th, 2014|Categories: Guardianship|2 Comments