Guardian Advocacy in Florida

Guardian advocacy is a Florida court process that lets a parent, relative or other caring adult make specific decisions for an adult with a developmental disability, and only in the areas where help is actually needed. It is set out in Section 393.12 of the Florida Statutes. Unlike a full guardianship, it does not require the court to find the person incapacitated.

Who guardian advocacy is for

It is available for a person with a developmental disability as Florida law defines it: a condition attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, Prader-Willi syndrome or Tatton-Brown-Rahman syndrome that began before age 18 and is expected to continue indefinitely (Section 393.063). Most families come to it as a child approaches 18, but it is available for adults of any age.

How it differs from guardianship

• No incapacity finding. A guardianship under Chapter 744 requires an examining committee and a court finding of incapacity. Guardian advocacy does not.

• Tailored authority. The court gives the guardian advocate only the decisions the person cannot make, such as health care, education or finances. Every right that is not delegated stays with the person.

• The same accountability. A guardian advocate has the same duties to the court as a guardian, including reports, and bond and accountings when finances are involved.

How the process works

1. Petition. An adult Florida resident files a verified petition describing the person, the specific decisions they need help with, and why alternatives such as supported decision-making, a power of attorney or a health care surrogate are not enough.

2. An attorney for your child. The court appoints an attorney to represent your child within three days of filing. That attorney represents your child, not the family.

3. Hearing. Your child generally attends. The judge must find the need by clear and convincing evidence and can consider school and support plans.

4. Order and letters. The order lists exactly which rights are delegated and why the guardian advocate was chosen. The guardian advocate completes the guardian training the court requires, which the court may waive in part or in full.

5. Ongoing reports. The guardian advocate files reports with the court each year. If finances are delegated, the guardian advocate must be represented by an attorney and file annual accountings. Accountings may be waived when the person's only income is Social Security and the guardian advocate is the representative payee.

When to start

The best time to begin is around your child's 17th birthday. That leaves time to look at the alternatives, sign any documents your child is able to sign and, if guardian advocacy is the right fit, prepare the petition. Court calendars vary, so no one can promise an order will be in place by the 18th birthday. If your child is already an adult, guardian advocacy is still available.

Consider less-restrictive options first

Florida will not appoint a guardian advocate if a valid power of attorney or advance directive adequately meets the person's needs. Depending on your child's abilities, a durable power of attorney, a health care surrogate designation, a supported decision-making agreement or simple information releases may be enough. Our guide to turning 18 with special needs walks through each option.

Rights can be restored

Guardian advocacy does not have to be permanent. Your child, or anyone interested in their welfare, can ask the court to restore some or all delegated rights when circumstances change.

Planning for the money, too

Guardian advocacy covers decisions. If your child receives SSI or Medicaid, an inheritance left to them directly can put those benefits at risk. A properly drafted special needs trust in your own estate plan is usually the way to leave money for your child's benefit. For adults who are losing capacity later in life, see guardianship in Florida.

Simani Law, PA helps families in Palm Beach, Broward and Miami-Dade counties with guardian advocacy and the planning around it, in person in Boca Raton or by video. Call (561) 226-3933 or book a consultation online.