Traditional Guardianship versus Guardianship Advocacy

In Florida, it is important to understand the difference between guardianship and guardianship advocacy. They are similar, but not the same. Knowing the difference between these two terms becomes important when a person is in either of the two cases.

Traditional Guardianship is a legal proceeding whereby an individual is adjudicated incapacitated (the Ward) and another individual is appointed with the authority to exercise legal rights for an incapacitated person (the Guardian). Traditional guardianship is established after the Alleged Incapacitated Person (AIP) is evaluated by a medical panel and determined by a judge to be incapacitated. The Guardian is typically an individual appointed by the Court who will manage the assets and make personal decisions regarding heath care and living conditions for the incapacitated individual.

Guardian advocacy refers to a specific Florida statute, known as the state's "developmental disabilities statute." This statute clarifies who is eligible to receive services funded by the state with regard to developmental disabilities. Additionally, it outlines those individuals eligible for the guardian advocacy process. Florida is one of only a handful of states that allows guardianship for an individual with a developmental disability to be established through a summary process.

Guardian advocacy is only available for those individuals described in the guardian advocacy statute. In order to qualify for guardian advocacy the individual must have been diagnosed with a minimum of one of five developmental disabilities. These disabilities include: mental retardation, cerebral palsy, autism, Prader-Willi syndrome and spina bifida. The diagnosis must be made prior to the individual's eighteenth birthday.

In order for a guardian advocate to be appointed, the state does not require that the individual be determined as incapacitated as required in the traditional guardianship process. Further, the individual with the developmental disability does not have to be evaludated by a medical panel. Instead, medical records reflecting the diagnosis of the developmental disability are filed with the Court in order to prove the need for the appointment of the guardian advocate.

A parent or parents are typically named as guardian advocate with one or more stand-by guardian advocates. We recommend starting the guardian advocacy process just before the person with the disability has their eighteenth birthday.

Always work with a qualified attorney who has experience in the area of special needs and guardian advocacy. This is not a complex process but one that requires knowledge and expertise in this very unique practice area.

The Law Offices of Hoyt & Bryan, LLC is the only Florida law firm with two attorneys board certified in wills, trusts and estates and elder law. Peggy R. Hoyt is a Florida Circuit Court mediator and primarily deals with family business and estate matters. If you need legal assistance regarding estate planning, please call Ms. Hoyt at 407-977-8080 or visit http://HoytBryan.com.

This article was published on 01 Aug 2014 and has been viewed 503 times
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