Guardianship

Guardianship and Alternatives

Each individual over 18 receiving services through the Agency for Persons with Disabilities (APD) is asked their legal status.

For many families in Florida the cost of filing for guardianship is prohibitive and in most cases not necessary.  Many individuals can make their own decisions, they just need help or assistance. There are some basic steps families might want to consider not only for an individual with a developmental disability but the whole family.

• Client Advocate: Instructions (pdf) Application Form (pdf) 393.0651(4), F.S. allows a person receiving services through the Agency for Persons with Disabilities (APD) to appoint a family member or friend  (with approval of the Support Planning Committee) to become officially recognized as a client advocate.  The client advocate may assume a variety of roles depending on the needs and wishes of the individual.  However, Client Advocate is only recognized within the APD.  A client advocate can assist with understanding information for an individual but may not make the decisions. 
   

• Health Care Surrogate:  (Chapter 765.401, F.S.) permits an individual to name a surrogate health care decision maker to make medical decisions if the individual is not able to give informed consent.  The individual must name a health care surrogate while capable of making medical decisions.  The surrogate does not assume responsibility until the individual is incapable of making medical decisions.
   

• Health Care Proxy:  (Chapter 765.401, F.S.)  If a developmental disabled individual has not executed a surrogate for health care decisions and is NOT capable of informed consent, a proxy health care surrogate may be appointed.  The law lists the order of priority.  Example:  guardian, spouse, adult children, parent, etc.

a.  Health Care Proxy Designation and Acceptance Letter
b.  Healthcare Proxy Statute
c.  Healthcare Certificate of Incapacity

LEGAL OPTIONS:

• Durable Power of Attorney (Chapter 709, F.S.)  Legally competent adults who are disabled but who are capable of informed consent may give durable power of attorney to another adult.  This legal document confers the legal authority to make decisions on specific matters for the person who is disabled and can be exercised until the death of the person who gave it.
   
• Guardian Advocate (393.12, F.S.)   Without requiring an adjudication of incapacity, the Circuit Court may appoint a guardian advocate if the person has a developmental disability and lacks the capacity to do some of the tasks necessary to care for his person, property or estate.  This is the least restrictive, and less costly, type of guardianship for persons with developmental disabilities.  There is an annual reporting that must be done by an attorney.
   

• Guardianship (Section 744.102(8)(a), F.S.)  This guardianship is the most expensive procedure requiring  evaluations by professionals.  It requires that there be an adjudication of the person.  Full Plenary Guardianship is the most restrictive and necessary for very few people.

References:

• Protecting Legal Rights, It's in Your Hands (pdf)
• Planning Ahead Handbook, Florida Developmental Disabilities Council http://www.fddc.org/
• ARC Florida Guardianship Handbook,
  http://www.arcflorida.org
• Florida Bar operates a Lawyer Referral Service (LRS) http://www.floridabar.org