Written by attorney Astrid de Parry

Florida Guardian Advocate Proceedings

Parents of children with developmental disabilities face challenges when those children reach the age of 18. When this happens, parents no longer retain the legal authority to make decisions for their children. Guardian Advocate proceedings enable a family member or caregiver of an individual with developmental disabilities to acquire legal authority to act on the individual’s behalf. Florida Statute § 393.12 governs Guardian Advocate appointments.

What are the differences between Guardian Advocate proceedings and Guardianship proceedings?

Guardianship proceedings are more time-consuming and costly in comparison with Guardian Advocate proceedings. Unlike Guardianship proceedings, Guardian Advocate proceedings do not require that the individual be declared incapacitated for a Guardian Advocate to be appointed. Guardian Advocate proceedings require that the Ward be diagnosed with a developmental disorder, such as mental retardation, autism, cerebral palsy, spina bifida or Prader-Willi syndrome, prior to the age of 18, constituting a lifelong handicap.

Who may serve as the Guardian Advocate?

Any Florida resident who is 18 years or older may serve as the Guardian Advocate. Specifically, individuals related by blood or marriage or those with the capacity to meet the unique needs of the Ward may serve as the appointed guardian in order to obtain legal authority to act on the Ward’s behalf. A non-Florida resident may serve if he or she is related to the individual by blood, adoption or law.

Will I be required to receive instruction or training?

A required number of hours of instruction and education are necessary upon being confirmed as the Guardian Advocate within 4 months of the appointment. These hours can be completed at court-approved organizations, such as colleges, universities, guardianship organizations, the local Bar association or The Florida Bar. The cost for attending the sessions may be paid from the Ward’s property to satisfy the Guardian Advocate’s educational requirement.

Must I hire an attorney to become a Guardian Advocate?

The process does not require the hiring of an attorney; however, the court will appoint an attorney for the disabled individual to ensure that his or her best interest remains protected. Even though it is not required, hiring an attorney may help in the overall satisfaction of the Guardian Advocacy process. On the other hand, if property is involved other than Social Security benefits or government payee programs, the individual seeking to be the Guardian Advocate must hire an attorney.

How do you become a Guardian Advocate?

A Guardian Advocate must file an Initial Report within 60 days of appointment stating the medical, mental, and personal care services required for the individual. This should include physical and health examinations in order to comprehensively determine the most suitable treatment and residential needs. A similar report must be filed each year by the Guardian Advocate stating the annual plan for the Ward in regard to physical, mental, and residential needs. The Guardian Advocate must complete necessary paperwork, file the paperwork with the Clerk of Court Probate Division, arrange for a hearing, mail necessary forms to an attorney appointed to the person with the developmental disability, attend the hearing, fulfill the educational requirements, submit an initial plan and, lastly, submit an annual plan each year.

Whom do I contact?

Even though hiring an attorney is not required, it may be considerably beneficial to do so in order to properly complete all paperwork and answer case-specific inquiries for becoming a Guardian Advocate.

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