SOLUTIONS FOR EFFECTIVE LIVING GUARDIAN ADVOCACY ETC Michelle

SOLUTIONS FOR EFFECTIVE LIVING: GUARDIAN ADVOCACY, ETC. Michelle Garcia Gilbert, Esquire Gilbert Garcia Group, PA Throughout Florida mgilbert@gilbertgrouplaw. com 1 -877 -728 -2056, ext. 202 www. gilbertgrouplaw. com

OPTIONS Power of Attorney Health Care Surrogate Living Will Trusts- special needs Guardianship Guardian Advocacy

GUARDIAN ADVOCACY • When children with developmental disabilities reach age 18, they become adults in the eyes of the law • Parents and caregivers legally cannot make decisions for adult children • For example, can no longer make medical decisions, managing finances or apply for benefits • Florida has guardianship process that addresses the needs of persons with developmental disabilities • Florida Statutes Chapter 393, Development Disabilities • Section 393. 12: Capacity; appointment of guardian advocate • Chapter 744: Guardianship laws, also apply to guardian advocate process

GUARDIAN ADVOCACY • Legal process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf • Accomplished without having to declare the person with a developmental disability incapacitated • Florida Statute Section 393. 063(9), developmental disability: • Intellectual disability, • cerebral palsy, • autism, • spina bifida, or • Prader-Willi syndrome • manifested before age of 18, and constitutes a substantial handicap that can be expected to continue for the rest of the person’s life

GUARDIAN ADVOCACY • Lacks decision making ability to do some, but not all, of decision making tasks necessary to care for his or her person or property • Need not be represented by an attorney unless required by the court or if guardian advocate is delegated any rights regarding property other than right to be the representative payee for government benefits • pending law suit, estate matter, or other income or property right coming to the person with a developmental disability • Attorney is appointed to represent the “ward, ” or the family member

WHO CAN BE A GUARDIAN ADVOCATE? • Any resident of the State of Florida who is 18 years old and of sound mind • Non-resident if he or she is related to the Ward by blood, adoption or law according to Florida Statute Section 744. 309(2) • Court may appoint any person whom it considers fit, proper, and qualified to act as guardian whether or not related to the ward • Preference given to a person who: • Is related by blood or marriage to the incapacitated person; Has relevant educational, professional or business experience; Has the capacity to manage the finances involved; or Has the ability to meet the requirements of the law and the unique needs of the individual. • Court shall consider wishes expressed by a developmentally disabled person

WHO CANNOT BE A GUARDIAN ADVOCATE? • No felony conviction • No judicial determination of abuse, abandonment or neglect against a child as defined in Florida Statute sections 39. 01 and 984. 03(1), (2), and (37), OR • Has been found guilty of, regardless of adjudication, or entered a plea of no contest under any similar statute of another jurisdiction can be appointed to act as a Guardian Advocate • Provides substantial services in professional or business capacity, creditor • Cannot be employee of agency or company providing services, except if spouse, adult child, parent, or sibling, or court determines conflict is insubstantial and would be in best interest

GUARDIAN ADVOCATE REQUIREMENTS • Florida Statute Section 744. 3135 may require criminal background and credit history reports, varies by county and judge • Florida Statutes Section 393. 12(10) and Section 744. 3145 require training by court-approved organization within 4 months of appointment, judges may waive for family guardians • Florida Statute Section 744. 361 and 744. 362 require filing Initial Plan within 60 days of appointment • Florida Statute Section 744. 367 require filing Annual Plans between 60 -90 days before the end of the last day of the anniversary month of the issuance of Letters of Guardianship, OR if the care plan is being submitted on a calendar year it must be submitted between September 1 and December 1 each year

COURT PROCESS • Advance Directives for Health Care and Durable Power of Attorney? • Application for Proposed Guardian Advocate • Education, Employment, Criminal and Credit background, Personal References • Information about family member • Indigency application • Petition for Guardian Advocate • Attach current individual family or individual support plan, individual education plan, and other professional reports documenting condition and needs of person, i. e. , doctor’s statement about condition, which meets statutory requirement • Oath of Guardian Advocate, Designation and Acceptance of Resident Agent • Agent must be resident of county where case is filed

COURT PROCESS • Notice of Petition served on family member and on next of kin (parents and siblings), health care surrogate and agent under durable power of attorney • Petition to File Simplified Annual Plans • Petition to Waive Inventory and Accountings • Orders granting petitions- Appointing Guardian Advocate • Nature of disability • List of rights delegated to guardian • Letters of Guardian Advocacy- issued by clerk of court and used when exercising rights on behalf of family members, will likely require certified copies

COURT PROCESS • Court appoints attorney who represents family member, meets family member prior to hearing, and can waive family member’s presence at hearing upon good cause shown, though family member has right to be present and testify • Courts sets a hearing on petitions “…as soon as practicable, ” but will allow reasonable delay for the purpose of investigation, discovery, or procuring counsel or witnesses • Prior to hearing, depending on preference of judge, criminal background and credit reports must be filed • Many of these pleadings will be sealed, due to confidential information • Burden of proof is clear and convincing evidence

LEAST RESTRICTIVE ALTERNATIVE • Guardian advocate may not be appointed if the court finds that the advance directive or durable power of attorney provides an alternative to the appointment of a guardian advocate which will sufficiently address the needs of the person with a developmental disability • Interested person can contest advance directive or durable POA by filing verified statement which included factual basis that it is invalid or does not address needs of family member • Advance directive: court shall specify rights of guardian advocate vs. health care surrogate and may modify it • Durable POA: may not be suspended unless court determines invalid or an abuse of power by agent

RESTORATION OF RIGHTS • Any interested person, including the person with the developmental disability, amy file suggestion • Currently capable of exercising some or all of the rights that were delegated to the guardian advocate and provide evidentiary support, such as signed statement from a medical, psychological, or psychiatric practitioner, or state good faith basis • Attorney appointed for family member • Clerk sends notices, objections filed within 20 days • Formal notice served on guardian advocate • Hearing held if objection filed or no evidentiary support • Court enters order denying suggestion or restoring all or some rights • Guardian advocate must file amended or final plan within 60 days, depending on outcome