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The parent of a child with mental retardation or a developmental disability almost always need to be sure that their offspring, whether an adult or a child, has assistance and guidance available in making decisions when they need it. Florida laws are designed to protect persons with a disability from having any civil or legal rights taken away from them unnecessarily. ARC/Florida has designed this handbook especially for parents and family members of persons with a developmental disability. Under Florida law a person with a developmental disability is one who is diagnosed with mental retardation, autism, cerebral palsy, Prader-Willi, or spina bifida. We hope that his handbook proves to be helpful in your planning and decision making regarding your family member with a disability. When a person reaches the age of 18 in Florida, they become a legal adult. Their parents or legal guardians can no longer make legal decisions for them when they reach their 18th birthday. It is no different for a person who has a developmental disability (DD) such as mental retardation, autism, cerebral palsy, Prader-Willi or spina bifida. In some situations, the adult with a developmental disability may still need assistance in making decisions. Trying to determine when to offer assistance or when the individual can act on his or her own behalf can be difficult. It is important to remember that the determination of a person's ability to make decisions must be made on an individual basis before others decide what help, if any is required. Previously in Florida, to establish a guardianship, the person had to be determined to be incapacitated to participate in all decisions affecting their lives. Today, the state has a changed philosophy on guardianship. It is best stated by the prologue to one of the two Guardianship statutes (F.S. 744.1012) under Legislative Intent: (F.S.744.1012)
In other words, rights are precious, and should not be removed unless absolutely necessary in the best interest of and for the protection of the person with incapacities. Most people with a developmental disability are able to manage their own personal and financial affairs without the intervention of a guardian but with appropriate services and support from family and friends. In any court order declaring a person incapacitated, the court must find that alternatives to guardianship were considered and that no alternatives to guardianship will sufficiently address the problems of the ward. It is very important, therefore, to explore less restrictive safeguards before considering guardianship. Several alternatives, which might be appropriate, are discussed below. This list is not meant to be complete. It is important to know that the various guardianship alternatives may be combined to meet the unique needs of each individual. Some are designed to assist with money management and to prevent financial exploitation. They may include limited bank accounts, trust funds, representative payees, or power of attorney.
Family members and friends can provide guidance and support, precluding the need for a guardian. For instance, family members can help define risks, advantages and consequences of a decision, and explain these in terms the individual can understand, providing a basis on which the individual makes the choice.
A person may volunteer to become a client advocate and assume a wide variety of roles depending on the needs of the individual. Chapter 393.0651 (4), F.S. allows the Support Planning Committee to appoint a client advocate for Department of Children & Families/Developmental Services' clients who are minors or who are not capable of express and informed consent. A client advocate may assume a wide variety of roles depending on the needs of the individual. Client advocates can serve as guides & advisors, assist with budgeting & paying bills, help make purchases, or perform the supportive activities that can be done by family & friends.
A trust is a legal device which permits the trustee(s) [person or persons, institution, or both] to manage the property or money for another person [the beneficiary] according to the directions of the person providing the assets [the grantor]. Even someone with minimal assets should consider creating one. (Refer to The Arc-US Booklet: A Family Handbook on Future Planning.)
A simple way to help with or influence someone's financial decision-making is through a checking or savings account that requires two or more signatures on any check written. This is an effective way to prevent financial exploitation. It can also be useful to assist people with money management. Any banking institution can help you use this alternative. If it is used, however, be sure to make provisions whereby the money in the account can be accessed if any of the signatories were to die. A disadvantage of this type of account is that one person in effect controls the money.
Another alternative might be a ceiling limit account established in the name of the person with a disability, who could withdraw only a limited amount. Checks or withdrawals over the specified amount would be invalid.
A representative payee is an individual who is given the authority by the Social Security Administration to receive & manage federal benefits for another person deemed unable to manage their own money. The representative payee receives the benefit payment and is required to account for its expenditure on behalf of the person for whom it is intended.
An attorney should be consulted regarding whether a Power of Attorney is feasible under the circumstances of a particular case. It is important, however, to be aware that this option does exist. Any individual can give someone else the power to make decisions regarding his/her estate. Legally competent adults who are disabled but who are capable of informed consent may give another adult a power of attorney. This means they are giving the other adult a legal document, which confers upon the other adult the legal right to make decisions for the person who is disabled on certain matters which are enumerated in the document itself. A durable power of attorney can be exercised until the death of the person who gave it. It is different from the ordinary power of attorney, which is considered to be revoked if and when the person who gave it becomes incapacitated. The durable power of attorney can also grant powers of decisions on medical and surgical care and the administration of drugs.
A will is an absolute necessity for people who have a family member who is developmentally disabled. Indeed, anyone who has a child should have a will naming a guardian in case the parents die before the child turns 18 years of age. At one time it was no unusual to advise families to disinherit a family member with a disability in order to protect eligibility for governmental benefits. With the advent of the supplemental trust, however, the assets can provide things that trustee would purchase for them, however large or small, without their necessarily becoming ineligible for benefits and without the inheritance being unduly vulnerable to the claims of creditors or providers of services. For example, the inheritance could be used to pay for things such as televisions, bicycles, camp, bowling equipment, unexpected surgery, dental care, special trips, or clothes. There are currently two laws in Florida, which address guardianship for persons who are developmentally disabled. These are Florida Statutes 744 (Guardianship) and 393 (Developmental Disabilities). The primary difference between the two is that section 393.12 is specifically designed for the unique needs of persons with developmental disabilities. (See guardian advocate below.) Guardians may be of the property or of the person. In most cases they are of both. Florida Statute 744 Guardianship
A person(s) is appointed by the court to exercise all delegable legal rights and powers of the person who has the disability. It requires that there be an adjudication of the person as incapable of handling any personal decisions, money and property; i.e., what the Florida law once called incompetent and now calls incapacitated. Few people require this type of guardianship. Guardian Advocate (Florida Statute 393) or limited guardianship (Florida Statute 744) is much to be preferred.
A person(s) is appointed to exercise only specified rights and powers which are named by the court. A limited guardianship occurs when the court has found that the individual is partially incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for his/her person or property.
A guardian is appointed for the person or property, or both, for an alleged incapacitated person prior to the appointment of a full guardian, if a petition for incapacity has been filed. To do this the court must find specifically that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that their property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.
If the court determines that the individual is not incapacitated, and that individual files a voluntary petition for guardianship, the court may appoint a guardian or co-guardians of the property of a person who, though otherwise mentally competent, is unable to manage property. A voluntary guardianship may be terminated by the ward.
Parents recognize their mortality and wish to have a hand in deciding who shall take over when they die. A standby guardian can be appointed, with the same petitioning procedures and at the same hearing as required for the basic guardianship. Those named as standbys may operate as guardian for 20 days after the death or incapacitation of the guardian, at which time they must have the court confirm their appointment. While courts tend to appoint close family members or siblings to succeed guardians, if there are no named standbys, this is not always in the best interest of the ward. Often it is a distant family member or a non-family member who knows the person with a disability and who has demonstrated concern and continuing commitment to the ward. Co-stand-bys and even successor co-standbys are commonly appointed. F.S.393.12 Developmental Disabilities
A probate court may appoint a guardian advocate without an adjudication of incapacity if the person lacks the capacity to do some, but not all, of the tasks necessary to care for his person, property, or estate. The person may voluntarily petition for the appointment of a guardian advocate. Only those rights the person cannot manage are removed. The four areas that most people with developmental disabilities may have difficulty handling, or for which society insists they have a substitute decision maker are: - Giving informed consent for medical, dental and surgical procedures; - Managing money or property; - Applying for governmental benefits or entitlements; - Deciding on residential choices. This is also true of Limited Guardianship under Chapter 744 except that Chapter 292 offers procedural advantages. First, it allows the use of appropriate experts by using the support plan or the individual education plan, which already exists, as proof of level of disability and potential. People who know both the person and the field of disabilities write those plans. Chapter 744 (Guardianship), on the other hand, demands a committee of a doctor, a health or social work professional and any other person -- none necessarily, and often not experts in the field of the disability. Second, Chapter 744 takes more legal time and fees to obtain a committee of "experts" who must also be paid. Chapter 393 does not require this committee nor that expense to the petitioner.
Even a person who has been determined to be totally or partially incapacitated retains certain rights. These include the right to: - Have an annual review of the guardianship report and plan; - Have continuing review of the need for restriction of rights; - Be restored to capacity at the earliest possible time; - Be treated humanely, with dignity and respect, and be protected against abuse, neglect, and exploitation; - Have a qualified guardian; - Remain as independent as possible, which includes honoring preferences on where he/she wants to live; - Be properly educated; - Receive prudent financial management for any property he/she owns, be informed if that property is being managed and be informed if he/she loses the right to manage property; - Receive necessary services and rehabilitation; - Be free from discrimination because of his/her incapacity; - Have access to the courts and an attorney; - Receive visitors and communicate with others; - Receive notice of all proceedings related to determination of capacity and appointment of a guardian advocate or guardian; - Privacy.
Delegable rights are those which may be removed from the person and given to the guardian by a court order if the person is declared incapacitated in that specific area. They include the right to: - Contract; - Sue and defend lawsuits; - Apply for government benefits; - Manage property or make any gift or disposition of property; - Determine a person's residence; - Consent to medical treatment; - Make decisions about social environment or other social aspects of one's life.
Unless the guardian receives specific authority from the court at the time of need, he/she may NOT: - Commit the ward to a facility or institution without formal placement proceeding for involuntary commitment; - Consent on behalf of the ward to the performance on the ward of any experimental biomedical or behavioral procedure, or participation by the ward in any biomedical or behavioral experiment; - Petition to dissolve a marriage; - Consent for the ward to terminate parental rights; - Consent for the ward to be sterilized or to have an abortion performed; - Consent to the termination of life support systems when a limited guardianship has been established.
The guardian under a limited guardianship (F.S.744) or as a guardian advocate (F.S.393) has only those specific rights which the court orders removed and are listed in the order which appoints the guardian. All other rights are kept by the disabled person.
Even if a person who is developmentally disabled is declared incapacitated by the court, there are still certain rights that he/she is entitled to under the law -- the same rights as any citizen of Florida or the United States. These include: - The right to dignity, privacy and humane care; - The right to religious freedom, with nothing restricting or infringing on a person's right to religious preference and practice; - The right to receive services, within available resources, which protect the personal liberty of the individual and which are provided in the least restrictive conditions necessary to achieve the purpose of treatment; - The rights to participate in an appropriate program of quality education and training services, within available resources, regardless of chronological age or degree of disability. These services may include instruction in sex education, marriage and family planning; - The right to social interaction and participation in community activities; - The right to physical exercise and recreational opportunities; - The right to be free from harm, including unnecessary physical, chemical or mechanical restraint, isolation, excessive medication, abuse or neglect; - The right to consent to or refuse treatment, subject to certain provisions in the law; - The right to vote; - The right to be free from discrimination in any programs or activities that receive public funds. Who May (or may not) Be A Guardian F.S. 744.309 Any resident over the age of 18, who is of sound mind and has not been convicted of a felony, is eligible to serve as a guardian, as is a non-profit corporation organized for religious or charitable purposes. A non-resident of Florida may serve as a guardian if he/she is: - A blood relative of the ward; - A legally adopted child or adoptive parent of the ward; - A spouse, brother, sister, uncle, aunt, niece or nephew of the ward; - A spouse of any of the above. Anyone who is a felon or who is incapable of or unsuited to perform the duties of a guardian may NOT be appointed as guardian. A non-profit corporation organized for religious or charitable purposes may be appointed guardian for a ward. A provider of health care services to be the ward, direct or indirect, may NOT be appointed guardian unless the court finds that there is no conflict of interest with the ward's best interests. A person who provides substantial services to the proposed ward in a professional or business capacity, or a creditor of the proposed ward, may NOT be appointed guardian and retain that previous business or professional relationship. A person may NOT be appointed a guardian if he is the employ of any person, agency, government or corporation that provides services to the proposed ward in a professional or business capacity EXCEPT that a person so employed may be appointed if he is the spouse, adult child, parent or sibling of the proposed ward or the court determines that the potential conflict of interest is insubstantial and that the appointment would be in the ward's best interest.
When appointing a guardian, the court gives preference to someone who is related by blood or marriage to the ward or who has the educational, professional or business experience relevant to the nature of the services sought to be provided. The court will also consider the wishes of the person who is incapacitated and wishes of a minor who is age 14 or over. The court must also consider any person named as guardian in any will in which the ward is a beneficiary. Duties of the Guardian F.S.744.361 For the duties described below, the Florida Bar has developed forms for the guardianship plans, the inventory, and the annual accounting of property and funds. They have also developed the forms for the Petitions and Orders to be presented to the court for waivers of fees, approval of plans by the court, and all other procedures which may be required. These forms are available from attorneys and in some cases from amiable clerks of the court, some of whom do not insist that the services of attorneys be used for the annual reports. The guardian may exercise only the rights specifically removed from the ward and delegated to the guardian, as stated in the court order of appointment. In addition to the powers and duties cited in the court order, each guardian has duties required by statute. Guardianship duties that are required by statute include: 1. To develop and implement within 90 days after the appointment, an initial guardianship plan which must be filed with the court along with a verified inventory. The inventory must also be filed with the state. The initial guardianship plan must be based on the recommendations made by the experts used by the court. Unless the ward has been declared totally incapacitated, he/she must also be consulted to the extent possible, and his/her wishes incorporated in plan. 2. (F.S.744.3675) To file a guardianship report annually, on the anniversary of the appointment, with the report to include an annual updated guardianship plan and an accounting of assets. 3. To develop and implement that annual guardianship plan, which must include details on the current condition and needs of the ward and how the guardian proposes to met those needs. It includes: a. Information concerning the last year's residence and the current appropriateness of the residence; residential plans for the coming year; b. Information concerning the ward's medical condition and treatment, if any, and if applicable, plans for medical and rehabilitative services; c. Information concerning social services used, social skills and interpersonal relationships maintained, visitations, communication potential of the ward and the social needs of the ward; d. Information on the issue of restoration of rights; 1) Activities designed to increase the ward's capacity; 2) Opinion on whether the ward is ready for restoration of rights; 3) Statement on whether restoration of rights will be sought. 4. To account, annually, to the court on all receipts, disbursements, cash deposited in any institution, and property on hand at the end of the accounting period. Upon review of the annual plan, the court may require re-examination of the ward.
A filing fee is imposed, to be paid from the ward's estate, but a petition for a waiver may be presented if the ward has no estate. Attorneys are well advised to include in the Guardianship Letters (the legal paper which spells out the authority of the guardian on appointment) that the guardian need not report annually on funds received as governmental benefits or entitlements or earned by the ward's own labor. That eliminates the redundant reporting on Social Security and SSI payments (for which the payees already must report to the government) and also on the usually small income many of the persons with developmental disabilities earn in workshops or low-paying jobs. Ordinarily the elimination of those two sources leaves nothing on which to report, and the court easily waives the yearly filing fee. Given the facts that many persons with developmental disabilities have no reasonable expectation of building a financial base, and have been cared for by parents who have only the interest of the ward at heart, it is suggested that the attorney should petition the court to waive ALL yearly financial reports unless the ward comes into money or until the parents die and the standby guardians are in charge. Many courts welcome the opportunity to cut down on the reporting duties. It is important that the reporting duties resume when standbys take over. The court notices serve to remind standby guardians of their duties to supervise and report. Detailed duties of a guardian, as well as all other procedures can be found in Chapter 744. By cross-reference, the same laws apply to Chapter 393. Education and Training F.S.744.3145 Each court appointed guardian must receive a minimum of 8 hours of instruction and training. This course must be completed within one year after appointment, and be done through a curriculum and teaching organization approved by the court. The training must include instruction on the rights of the ward, the legal duties and responsibilities of the guardian, the availability of resources to aid the ward and the preparation of habilitation and other plans as well as the annual reports, which must be submitted, to the court. The guardian's training expenses may be paid from the ward's estate unless otherwise directed by the court. The training course, or any part of it, may be waived if the court agrees that, given the experience and education of the guardian, the training is not necessary. The guardian may be required to post a bond unless the petition and order are so worded that the bond is waived, on the basis of the zero assets of the ward. The guardian, as guardian, has no personal financial responsibility for the care and maintenance of the ward. Failure to file both the initial guardianship report and inventory or the annual reports within the specified time limit may result in a court order to show cause why the guardian should not be held in contempt. A contempt citation may bring a fine which CANNOT be paid from the ward's property. Guardians must be impartial, independent and may never profit from the fiduciary relationship, except for fees and expenses as provided by law and approved by the court. A guardian may not borrow money or purchase property from the ward unless at public sale and then only if they are a relative or a co-tenant of the sale property. There are thousands of people who have only some incapacity to handle their affairs but who have been declared totally incompetent because that was the only procedure available up to a dozen years ago. Even then rights were too often removed for no reason. The law outlines the procedure for restoration of some or all rights to correct the errors of the past. (See Restoration of Rights.)
Petitions must be filed in the probate court in the county of residence for the person with the developmental disability. Filing fees vary from county to county. Within each county they also vary on whether the guardian is of the person, of the property, or both. Clerks of the court may explain the process to you and in some cases will even give you copies of the required forms, but they may not help you complete the forms or give you legal advice. Your attorney will have the forms for the initial petition papers and the annual reporting procedures. Be warned that many if not most, attorneys are not aware of the option to have a partial guardianship (Guardian Advocate) under the less costly and more appropriate Section 393.12 (2) Florida Statutes procedure. (See Types of Guardianship.) Understand that it is okay to shop for an attorney, both for fee per hour and especially in the area of experience in this very specialized field. Most attorneys with general practices have done guardianships for elderly people as well as total incompetency procedures for people with developmental disabilities. Few attorneys have done partial guardianships. The lack of interest in serving persons with developmental disabilities is evidenced by the fact that when the Florida Bar offers continuing legal education in guardianships, they never include those appropriate for developmental disabilities. You may need two attorneys, because the law says that the potential ward has the right to be defended in the hearing. Most judges are properly insistent on this right. Others are not. If parents or others are the petitioners, the attorney they engage will be representing them, and they should know whether the court would demand an attorney for both the ward and the petitioner. Otherwise the court may pull in the judge's choice of an attorney on short notice, and that person may or may not understand the potential of the person or the nature of the disability involved. The potential ward, if capable of understanding the need for the process (e.g., the need for help in handling money, etc.), may be the petitioner or one of the petitioners, thus from the start being represented by an attorney presumably acting in his/her best interest, and avoiding the need for two attorneys.
After a petition has been filed, if the 744 Florida Statute procedure is being used, the court will appoint an examining committee (one of whom must be a physician - not always an appropriate expert) and set a date for the hearing. If the 393.12 Florida Statute procedure is followed, the court can use the Support Plan or Individualized Education Plan (a better committee report because it is made up of the people who work with and know the individual) to attest to the nature of the disability. Remember that the court must find that alternatives to guardianship were considered and that no alternatives would be sufficient.
The law says there should be a hearing with all principals present. Before the hearing, notice of it must be served on (and read to) the alleged incapacitated person, given to the attorney counsel for that person, and served upon all next of kin. At the hearing the petition for standby guardians may also be presented. The court if convinced that there is a need for a guardian, either plenary or limited, will sign the Orders and Letters prepared by the attorney. Standbys receive only Orders until they are active. If any interested person, including the ward, believe the ward is capable of exercising some or all of the rights which were removed, they may file a "suggestion of capacity". This is the first step in restoring rights to a person who has been declared incapacitated. Once this suggestion has been filed, the court will appoint a physician to examine the ward. If no objection is found and the court is satisfied with the report, then the court may enter an order restoring all or some of the rights, which were removed from the ward. When a ward becomes capable of acting in his/her own behalf or is "restored to capacity", or when the guardian has been unable to locate the ward through diligent search or for various other reasons, the guardian must file a final report and receive his discharge. A guardian may resign and be relieved of guardianship duties with the approval of the court.
(July 1999 Update)
ARC/Florida 411 East College Avenue Tallahassee, FL 32301 (850) 921-0460
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Family and Friends