Legal Planning for the Future

There are a number of facts that families should understand before taking the steps to protect the legal rights of the member who has a disability. The first (and perhaps most important fact) is to recognize that disability law is a specialty area of legal expertise. Be as particular about choosing a disability law attorney to work with your family, as you would be about choosing a doctor to treat a specific health problem. After all, you wouldn't go to a dermatologist if you had a brain tumor. Likewise, you shouldn't expect a tax attorney (or even an elder law specialist) to be an expert in disability law. Setting up special provisions in your will, or creating the right type of properly worded trust, is a task best completed by an attorney who has gained expertise from years of experience working with families like yours.

For families embarking on this task, the first question usually is, "Where can I find a knowledgeable attorney?" The best answer usually is: Check with other families in your part of the state to see who they have used and whether they are satisfied with the service they received. Alternatively, ask the local disability organizations (ARC, UCP, etc.) for attorney referrals; get more than one name if you can. Call or visit each attorney till you find the one you are comfortable with. (Most offer a free initial consultation, but be sure to ask before you go.)

If it's convenient, consider bringing your loved one along on the initial visit to meet the attorney. (Though helpful, his/her attendance is not mandatory.) When you arrange the appointment, ask what documents or information you should bring along. Otherwise, be sure to get a clear understanding of the information, records and documents that the attorney will need, before you return for your next appointment. (This can be important if you have to send away for certain items or if you must make a second trip to deliver needed papers.)

Take some time beforehand to consider what you will be asking the attorney to do for you. Do you need a new will drawn or a previous one reviewed? Are you petitioning for guardianship or guardian advocate? If so, who will fill those roles? Do you want to create a special needs trust or does one already exist? Don't be overwhelmed if you don't know the answers to these questions right now. Going over all of the material in this section on Legal Planning, as well as the information in the section on Financial Planning, will help clarify what you need. However, while helpful, none of this information can substitute for the advice of a knowledgeable attorney who will ask you questions, get to know your family and seek to understand your goals for the future care of your loved one. Make the most of that counsel and your time with the attorney to get the type and amount of legal protection that your family needs.

In the meantime, review the following facts. Recognize that merely being the parent of an adult with a severe disability does not automatically make you his/her guardian. Under Florida law, once an individual turns 18, a legal guardian must be appointed through a court process. Even though you may be his/her parent, unless you have been legally designated as a guardian, you have no standing to: make decisions regarding the health care or treatment of your adult child; manage his/her finances or benefits; sign legal documents on his/her behalf; or, even decide where or with whom he/she will live.

Of course, not everyone who has a disability needs a legal guardian. Though it's generally agreed that people with mental retardation (an intellectual disability) do need legal protection, the type and amount of protection needed will vary with each individual. More people with disabilities participate in their communities now. Removing only those civil rights that the person cannot exercise safely alone, while leaving remaining rights intact (the right to drive, to vote, to participate in court, etc.) can help insure the best quality of life for your loved one. The tools in this section will guide you in determining the amount of protection your family member needs. The following questions may also prove helpful.

Many people know there is a Florida law on guardianship (F.S., Chap 744). But did you know there is another state law and type of guardianship for families who want to protect the legal rights of a person with a developmental disability?

Do you understand how to set up a joint bank account (with limited liability) for a family member who is ready and able to assume some financial responsibility?

Do you know the different forms of guardianship that offer varying degrees of protection for your family member? Do you know what a "health care surrogate" is or when this can be used by a person with a disability? Do you understand the responsibilities of a person in that role, and the process for naming one? Do you need to better understand terms like "informed consent" and "living will" both for yourself and for your loved one?

If your answer to these questions was NO, or if you want more information about these issues, go to the Legal Issues "Frequently Asked Questions" section by Clicking Here.

Do you understand the meaning of the term, "guardian advocate" or why this method of protecting rights is often favored by families?

Do you fully understand the terms "informed consent" and "living will," as they relate to both you and your loved one?

If your answer to any of these questions was NO, See the Legal Issues "Definitions" section by Clicking Here.

If you are satisfied that you understand all of the information on legal issues presented in this section so far, go on to Step Three and test your knowledge by Clicking Here.