Legal Issues

Frequently Asked Questions & Answers

Q: What are the different types of guardianship in Florida?

A: Families of individuals with developmental disabilities are usually most familiar with full guardianship, partial or limited guardianship and guardian advocate. For a detailed explanation of these and other less commonly known types of guardianship go to the "Definitions" section or Click Here.

Q: What are the laws in Florida that govern guardianship?

A: There are two laws: Chapter 744, Florida Statutes, covers all persons who might need guardianship for any reason. Guardian Advocate, the type of guardianship described in Chapter 393, Florida Statutes, is only for individuals with developmental disabilities.

Q: Who can be appointed as a guardian in Florida?

A: In Florida, any resident older than 18 who is of sound mind and who has not been convicted of a felony may serve as a guardian. A non-profit religious or charitable corporation may also be a guardian. Some Florida counties also have an office of the public guardian, who may be appointed to serve for a person who is eligible for Medicaid, has no willing family or friends and can't afford to pay a private guardian.

Q: What kind of responsibilities does a guardian assume?

A: The new guardian must: 1) complete a court approved basic training course; 2) develop and carry out the annual guardianship plan to meet the condition and needs of the ward; and, 3) file the annual plan of care and a financial accounting with the court. (The court may waive the need for the accounting if the ward has no assets). It is important for family members to realize that a guardian has no financial responsibility for the care of the ward. The guardian is not required to take the ward into his/her home, for instance. Finally, if circumstances change, a guardian may resign and be relieved of guardianship duties with court approval.

Q: If my child doesn't need all the protection and restrictions of guardianship, are there other ways of protecting his rights, especially in financial matters?

A: There are several different means you might use, such as joint bank accounts, ceiling limit checking accounts, power of attorney and representative payee. For definitions of these terms see the Definitions Section or Click Here. However, some people only need caring involvement and support from family and friends to manage their own affairs successfully.

Q: How does guardian advocacy differ from other forms of guardianship?

A: It differs in several ways; it is similar to limited guardianship in that only those rights which the family member cannot manage are removed, it is easier to implement, requiring no committee of specialists (hence, usually less expensive), it does not require a competency hearing, and the person with the developmental disability can be the petitioner. It is most commonly used to: give informed consent for medical/surgical treatment, manage property or money, apply for government benefits for the ward, and decide where the individual will live.

Q: My adult daughter is easily manipulated and would sign her name to anything. Can I protect her from being exploited financially by using a power of attorney?

A: A person who gives another the power to act on his/her behalf must first be capable of giving informed consent. The ability of a person with an intellectual disability to give informed consent might be questioned, so a power of attorney (POA) would likely not be appropriate in that case. However, for individuals with other disabilities a power of attorney could prove useful because it has several potential advantages.

First, a POA will not take away any rights from your adult son/daughter. Second, it is inexpensive, and paperwork can be done quickly without bringing in the courts. On the other hand, there are some disadvantages to this tool. Your adult child could still sign a binding contract without telling you. He/she can withdraw the power of attorney at any time, simply by destroying the document. Also, unlike guardianship, only one person can have the power of attorney at any time (another family member can be named to have second power of attorney, if you are unable to continue). Perhaps most importantly, some banks and doctors will not recognize a power of attorney, and may demand additional legal proof.

Q: My son has mild retardation. He and I have discussed what we want done for us, in case we are dying and there is no hope of recovery. Now I'm wondering how we can tell other people our choices. Is a living will the way to do this?

A: There are two ways to go about communicating your wishes. The first is to make a living will and, the second is to name a health care surrogate. A living will allows you to state the medical measures you do not want used if death is imminent and your condition is not reversible. (A typical living will can prevent doctors from using a feeding tube or a mechanical breathing device to keep someone alive.) Sometimes people are afraid to make a living will because they think nothing will be done to help them if they have a heart attack or get into a serious car accident, for instance. However, a living will does not go into effect in those situations because the resulting conditions are treatable and reversible.

With a health care surrogate you designate another person (spouse, family member, friend) to make decisions about your medical care. (It can also be used to apply for medical benefits, or transfer from one healthcare facility to another.) The authority of the surrogate only goes into effect if or when you are unable to speak for yourself. A health care surrogate is sometimes called a health care power of attorney.

However, like the POA above, only a person who is capable of understanding and giving informed consent can make a living will and/or designate a health care surrogate. By all means, you should complete these documents for yourself. Your son may be able to use them too; your attorney can help you decide. More likely, your son's guardian or guardian advocate will carry out his wishes for care when the situation arises. Be sure the guardian knows what these wishes are.

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