What is Guardianship?
When any child turns 18, the right to make important life decisions (about healthcare, finances, where and how to live) transfer from the parent to the child. Children who have intellectual or developmental disabilities may not be able to make some or all of these decisions.
By getting guardianship, a court removes the right of the child to make these decisions, and gives that right to the guardian, who is usually the child’s parent or caretaker. In essence, the parent continues parenting they way they did before their child turned 18.
A court may remove some of these rights, or all of these rights, depending on the ability of the child.
Read more about guardianship here.
What is a guardian advocate in Florida (and how is it different from guardianship)?
A guardian advocate has the same rights as a guardian in the State of Florida. The guardian advocate “program” is an expedited way for the parent or caretaker of an adult with an intellectual or developmental disability to become the guardian. Unlike the traditional guardianship system (often used for elderly persons), no panel needs to be appointed to determine the competency of the ward, and there is no requirement to hire a lawyer.
For more information, see our more complete article, “What is a Guardian Advocate?”.
How do I become a guardian advocate in Florida?
Parents and caretakers complete the guardian advocate application and file it with the probate section of the “district court” that covers the county where they reside. The application needs to include, among other things, a credit report, criminal background check, medical diagnosis for the child, and a copy of a recent IEP or other care document prepared by a government (or government monitored) agency.
Once all the paperwork has been assembled, the court appoints an attorney for your child, and the attorney has to meet with the child. Once this is complete, a court date can be set. Provided all the paperworks is in place, the court will approve or deny your application. Once approved, you must complete a guardianship training class (make sure you go to the approved class approved by the court in your district).
Download our FREE Ultimate Guardianship Checklist for links to all the district courts in Florida, all the approved guardianship classes, and to all the application forms.
How much does it cost to become a guardian advocate?
The costs vary depending on how (and when) you file your application. You can get it done for as little as $250, or spend over $7,500. A lot will depend on whether you file with or without a lawyer, since this will be your biggest expense.
For a full explanation about the cost of becoming a guardian advocate, see our Infographic, “The 7 Main Expenses to Getting Guardianship for your Child in Florida”.
How does getting guardianship protect my child’s health?
Managing healthcare is difficult. Think about all the steps that go into getting medical treatment. You have to know you are sick (or need a checkup), you schedule an appointment, pick the right specialist, get to the appointment, deal with all the paperwork, manage your insurance, pay copays, meet with the doctor, explain your symptoms, ask questions about treatment, schedule follow-up care and much more.
For adults with IDDs, managing all of these steps may be difficult. Some adults with IDDs may have sensory issues where they may be unaware they are sick or hurt. Or doctor visits may cause so much anxiety that they may opt out of treatment altogether.
If your child cannot manage all of the steps required to stay healthy, by getting guardianship, a parent can continue to take responsibility for their child’s care after they turn 18. Guardianship is more effective than certain alternatives to guardianship, which only give parents the right to aid in their child’s care and are revocable by the child at any time.
Take our Healthcare Assessment to see if you should be considering guardianship for your child.
Should I hire an attorney to file for guardianship, or do it on my own?
In Florida, the probate court only has jurisdiction over your child once they turn 18. However, you can file for guardianship a few months before your child’s 18th birthday, and have letters signed once your child turns 18.
If you qualify for Florida’s expedited guardian advocate program, there is no requirement to use an attorney to file your application. Hiring an attorney, filing without one, or using a low-cost legal service like Guardian Project is a personal choice.
The Florida guardian advocate application process is complicated. If you do it on your own, get help from someone knowledgeable about the process.
It’s been our experience that parents who try to file on their own end up experiencing a lot of anxiety about the process, whereas the parents who hired an attorney had none.
This article that has several interviews with parents who filed with and without attorneys.
Also, take our quiz to find out if you’re better suited to file on your own, or with an attorney.
If I don’t get guardianship, can my child just “opt out” of medical care?
Yes, once your child turns 18, they can opt out of medical treatment, unless a doctor determines that they do not have capacity to make medical decisions and allow a statutory medical proxy.
What if I’m divorced and my ex-spouse (my child’s other parent) disagrees about getting guardianship? What can I do?
In any guardianship proceeding, all parents must be notified that the other parent is seeking guardianship so they have an opportunity to object in court.
In the best case scenario, divorced parents will find a way to reach some sort of agreement about guardianship.
However, in a case where one parent feels the child needs guardianship, and the other does not, one parent can file a petition for guardianship without the other’s consent. That parent should be prepared to justify to the court why guardianship is in the best interest of the child.
In this situation, it will be in your best interest to hire an attorney to represent you since there is a high likelihood that the guardianship will be contested by your ex-spouse.
Is Guardianship the same as getting power-of-attorney?
No. Getting a power-of-attorney is not the same as getting guardianship. A guardian is appointed by a court, who removes a person’s rights to make certain decisions and gives that right to the guardian.
A power-of-attorney is given by one person to another to make decision in their place, under certain conditions. It does not remove the grantor’s right to make decisions on their own, and the power-of-attorney is revocable by the grantor at any time.
Additionally, the grantor must have the capacity to understand the nature of the authority that they are giving to their power-of-attorney. So in the case of a person with an intellectual disability, if they do not have the capacity to grant the power-of-attorney, it would be void on its face.
Read more about the risks of using a powers-of-attorney in lieu of guardianship here.
How long does it take to get guardianship?
Getting guardianship depends on the court’s docket, and how long it takes to get an appearance in front of the judge. Typically it can take between three and six months from the date your petition is filed, and it can take as long as a month to prepare the petition and ancillary paperwork required for the application.
If I am guardian, what happens to my child if I die?
Guardianship is actually the most effective way to control who will care for your child if you die, or are unable to serve as guardian for your child.
During the application process, a “standby” guardian can be appointed. This person has no official duties until the guardian is unable to serve, at which time the “standby” guardian takes over. A notice filing would need to be made with the court once the standby guardian takes over.
Can a sibling be an “alternate” guardian if something happens to me?
Yes, as long as they are 18 or over, and meet all the other requirements for being guardianship.
Can both parents be guardians?
Yes, both parents can be guardians, but most attorneys advise against it. If there are “co-guardians”, both guardians have to agree about any decision being made for the child, opening up the possibility to a deadlock, which would require the court to resolve.
One work-around is to have one parent appointed as the “guardian of the person” who exclusively deals with living and healthcare arrangements, and one parent appointed as “guardian of the property” who exclusively deals with financial affairs.
My child has a “low IQ” but has no diagnosis, can I still use the expedited guardian advocate process?
No. The guardian advocate statute requires that the child have a diagnosed syndrome or disorder that causes and intellectual disability. Without a diagnosis, you would need to file under the full guardianship statute.
If I don’t get guardianship, can my child move out on her own?
Yes. Once your child turns 18, they can choose where they want to live, and with whom, same as any other child.
If I become guardian, will that affect the government benefits my child is eligible for (like SSI)?
Getting guardianship will not affect your child’s government benefits. Once your child turns 18, whether you get guardianship or not, benefit eligibility is still based on your child’s income and assets.
What tests do I need to pass before I can become someone's guardian?
You do not need to pass any tests to get Guardianship for a child with a disability. While the Guardian Advocate application does ask about any “special skills” you may have, the court expects parents (or family caretakers) to become the appointed guardian. Parenting for 18 years is considered sufficient skills.
This all being said, all guardians will need to take a guardianship course after getting appointed. It’s typically an 8-hour course given by a local community college and there is a small fee to attend. In our Ultimate Guardianship Checklist, we’ve included a link to all the the court approved guardianship courses by county.
If I get guardianship, does that mean the government will permanently be in my life?
By getting guardianship, you and your child will fall under the jurisdiction of the court. You will be required to file annual report and get the court’s consent for certain major decisions, like changing your child’s residence.
While this may seem like a nuisance, most parents who get guardianship say that complying with these requirements is not a burden, and parenting goes back to business-as-usual once they get guardianship.
Am I doing the right thing for my child by getting guardianship?
If you are concerned about protecting your child who has an IDD, guardianship is safest way to make sure your child is cared for. However, guardianship will remove some of your child’s rights, and will require you to be under the jurisdiction of the court.
Only you can know if guardianship, a limited guardianship, or one or more of its alternatives is the right solution for your child, and your family. The best thing you can do is to educate yourself about the benefits and drawbacks of guardianship and its alternatives.
A good starting place is this article and video about guardianship and its alternatives.
Also, take our 5-Step Guardianship Assessment to see if guardianship or one of its alternatives is best for your family.
