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Considerations Regarding Florida Guardianship for Individuals with Disabilities

Guardianship is a legal process for protecting children who have mental disabilities and incompetent adults. The Definition of an incompetent adult in legal terms is an adult who cannot take care of their self, make decisions that are in their own best interest, or handle their assets due to a physical or mental disability. When the court determines that a person is incapable of handling either their personal or financial affairs a guardian will be appointed.

Most parents of an adult child with a disability are concerned with protecting that child. Parents of children with severe disabilities often assume that they can continue to be their adult child’s legal guardian during the child’s entire life. However, without a legal Guardianship, parents do not have the legal authority to make decisions for their child past the age of eighteen.  Once an individual reaches the age of eighteen, the parent is no longer the individual’s legal guardian. You should seek the advice of an experienced and knowledgeable Florida Guardianship attorney to assist you in determining whether a Guardianship is necessary.

It may often be apparent to parents or family members that a child does not have the ability and mental capacity to make informed decisions. However, in Florida, legally an adult is presumed competent unless otherwise determined to be incompetent through competency proceedings. Guardianship and Competency proceedings must be filed in a Florida Court for a Guardian to legally be appointed. You should seek the advice of an experience and knowledgeable Guardianship Attorney to determine the legal options that are available in Florida to assist you in protecting your child from individuals who may exploit your child’s inability to make informed choices.

Some things to know when considering Florida Guardianship:

• A Guardian of the Person is responsible for monitoring the care of the person with disabilities to ensure that the individual is receiving proper care and supervision. The guardian is responsible for decisions regarding most medical care, education, and vocational issues.

• A Guardian of the Property is responsible for managing and monitoring the financials of the person with disabilities who is unable to manage their own finances and have income from sources other than benefit checks, or have other assets and/or property. This may include paying bills, managing and monitoring investments, and/or managing real property.

• A Guardianship of the Person or Property may be limited to certain areas of decision making. This means that the individual with a disability may retain some of their decision-making rights. This may include decisions about medical treatment or medications, in order to allow the individual to continue making their own decisions in all other areas.

• A Temporary Guardian may be appointed in an emergency situation wherein it may be necessary to make certain decisions immediately in order to protect the individual or their finances from harm.

If an individual with a disability is capable of making some but not all decisions, there are less restrictive alternatives to guardianship. An experienced Florida Guardianship can assist you in making the decision as to whether Guardianship is necessary or whether a less restrictive alternative may be available.

Some alternatives to consider are: 

1. A joint bank account can be created to prevent rash expenditures. Arrangements can be made with most banks for benefits checks, such as Social Security or SSI payments, to be sent directly to the bank for deposit.

2. For those individuals who receive benefits checks from Social Security, Railroad Retirement, or the Veterans Benefits Administration, a representative payee can be named to manage the funds of a person with a disability. In these cases, the benefit checks are sent to the representative payee rather than directly to the individual.

3. A Durable Power of Attorney for property is a legal document that grants one person the legal authority to handle the financial affairs of another. Generally, the use of a Durable Power of Attorney should be used when the individual with disabilities has the capacity to make basic meaningful decisions and does not require full guardianship but may not be able to make complex financial decisions without support. Once an individual is determined to be incapacitated by a Florida Court, the Durable Power of Attorney is void.

4. A Designation of Health Care Surrogate, also known as a health care proxy, should be considered for individuals who are presently capable of making decisions about their health care and wish to anticipate possibly future incompetence. Unlike the Durable Power of Attorney, a Designation of Health Care Surrogate may survive a determination of incapacity.

5. A Trust may be an appropriate alternative to appointment of guardian in some circumstances. A Trust is a legal plan for placing funds and other assets in the control of a Trustee for the benefit of an individual with a disability, or even for those with no known disability.

As mentioned previously, Guardianship is an option for persons who, because of mental illness, developmental disability, or physical disability, lacks sufficient understanding or capacity to make or communicate responsible decisions concerning their care and financial affairs. Guardians are approved and appointed by the appropriate Florida Court. Guardianships are also supervised by the Court.

Florida law, requires the Guardian provide reports on the status of the individual to the court annually. One report or Annual Accounting provides the Court with detailed accounting of how the individual’s financial affairs were conducted, and includes a detailed accounting of all debits and credits to each financial account.  The second report or Annual Plan of the Person provides the Court with a detailed accounting of the individual’s residential setting, medical care, and social environment for the year. The Annual Accounting looks back at the previous year’s finances, the Annual Plan looks ahead at the individual’s residential and medical care for the upcoming year.

In general, the Florida Guardian is responsible for handling the individual’s financial resources, but is not personally financially responsible for them from his or her own resources.  Typically, the Guardianship is paid for and funded through the individual’s assets in which the Guardianship is established for. 

Florida law requires that a Guardian be represented by an attorney. If you have any questions, or would like to further discuss this, or other Guardianship or Probate Administration matters, please contact Ann Marie Gilden, Esquire of Ann Marie Giordano Gilden, P.A. at (407) 732-7620 to set up an initial consultation. You may also visit my website at https://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.