Blog

Florida Guardian Advocacy for Your Cognitively Challenged Child

When a person turns eighteen (18) years of age, according to Florida law they are an adult. As an adult, you are expected to make the appropriate decisions about your medical treatment, finances, and life. To make these appropriate decisions, you should be competent to understand the consequences of the decisions that you are making. You as their parent no longer have the legal authority to make these decisions for your child. What happens, when you have a cognitively-challenged child about to turn eighteen, and you are worried that they are not capable of making these appropriate decisions or understanding the consequences of their decisions?

Florida Law allows for you to petition the Court for special authority to continue making the appropriate decisions for your special needs’ child regarding their medical treatment, finances, and other aspects of their life.  These proceedings are referred to as Guardian Advocacy. A Guardianship is a legal proceeding in which you request the court to determine that a person is unable to manage his or her own affairs effectively because of a disability.  A Florida Guardian advocacy is an option available only when a person has a developmental disability or a mental illness.

Under Florida Statute §393.063(12), a person with a developmental disability must have an Intellectual Disability (IQ less than 70), Cerebral Palsy, Autism, Spina Bifida, Downs Syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome that manifested before the age of eighteen; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.  

As a Florida Guardian Advocate, you would typically have the authority to make provisions for medical, mental health, dental and personal care of your developmentally challenged child. You would also have the authority to make decisions regarding the residential setting, or where your developmentally challenged child would reside. You would have the authority to advocate on behalf of your mentally challenged child with third party institutions, this would also include making financial decisions. You should speak to a knowledgeable and experienced Florida Guardianship attorney for more information and guidance regarding the authority that is delegated to you as a Florida Guardian Advocate.

When petitioning to become a Florida Guardian Advocate of your child, you will be required to submit to a level 2 criminal background screening at your own expense. You will be responsible for contacting the appropriate agency and to make arrangements for the level 2 criminal background screening.  This screening includes fingerprinting.

You will also be required to complete eight hours of guardianship instruction and education within four months after your appointment as Guardian Advocate. The training must be completed through a course approved by the chief judge of the circuit court of the county in which you and your cognitively challenged child reside.

After you are appointed by the Court as a Florida Guardian Advocate, you must file an Initial Report within sixty (60) days of your appointment.  You are required to include in the initial report a statement of medical, mental, or personal care services that you reasonably anticipate your cognitively challenged child will need over the next year. You will also be required to include the place and kind of residential setting that will be best suited for the needs of your child.  In addition, the Initial Report must include all physical and mental examinations that may be necessary to determine the medical and mental health treatment needs of your child.

As a Florida Guardian Advocate, you must file a report each and every year, termed the Annual Report, and it must be filed within ninety (90) days after the last day of the anniversary month that the Letters of Guardian Advocacy were signed by the Judge. The Annual Plan will cover the next year.

It is appropriate, in order to avoid a gap between your cognitively challenged child’s eighteenth birthday and the appointment of a Florida Guardian Advocate, you may initiate the petition up to one hundred and eighty (180) days before your child’s 18th birthday.

Under Florida Law, you are not required to have an attorney to petition as a Florida Guardian Advocate. However, applying for a Florida Guardian Advocacy can be a complicated process. If you are considering applying for Florida Guardian Advocacy of your cognitively challenged child, it is important that you completely understand the process and procedures. A knowledgeable and experienced Florida Guardianship Attorney can assist you in these matters.

If you have any questions, or would like to further discuss this, or other Guardianship or Probate, and Estate Administration matters please contact Ann Marie Giordano Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7600, and visit my website at www.AnnMarieGildenLaw.com.

This information is provided only as educational materials, and does not constitute the providing of legal advice, and does not create any attorney-client relationship.