What Does Becoming a Guardian Advocate Involve?

Mon, Jul 25, 2011

General Legal Issues, Guardianship

Many parents face the task of becoming a guardian advocate when their child with a developmental disability turns 18. Once someone reaches the age of 18 in Florida, the parent can no longer legally make decisions for them, even though a child with disabilities may still require much care. Thus, most parents become a guardian advocate for their child after the child’s 18th birthday.

The Florida State Statutes specifically call out the following as developmental disabilities that might need a guardian advocate: retardation, cerebral palsy, autism, spina bifida, and/or Prader-Willi syndrome. The disability must have had its onset before the age of 18 and must still significantly impair the child’s life.

Guardian advocacy is a way for a parent or other caregiver to become responsible for making decisions for the child. A guardian advocacy is not necessary for all those with a developmental disability, nor does it declare the child incompetent. It is recommended in certain cases where the child still needs help making decisions. Some fear that a guardian advocacy would be too expensive to pursue, but often caregivers find out that the expense of not having pursued one turns out to be greater. Some areas where the advocacy is necessary include discussions with medical professionals, government agencies, or financial institutions. Medical professionals have to follow laws regarding medical privacy and will not be able to discuss medical records or care without an advocacy, except in cases of emergency. For these reasons, SmithLaw advises parents to investigate becoming a guardian advocate as soon as their child nears the age of 18.

The Florida State Statutes Section 393.12 is where the law regarding guardian advocacy is mentioned. This legal process is where the caregiver (parent or other involved adult) petitions the court to become the guardian advocate. An attorney will be appointed for the child in question to be sure that they are being looked after. Unlike other guardianship proceedings, guardian advocacy does not always require an attorney on the part of the person seeking the advocacy. However, cases where the child owns property or has property rights to an estate do require an attorney (an exception is government benefits). Attorneys are often helpful in these cases, even if not required, as they can quickly help gather the required paperwork and make sure the process continues easily and more quickly.

There is a series of steps for someone to petition for guardian advocacy which can be found in detail on your county clerk’s website or in their office. Some of the steps in becoming a guardian advocate that span most counties in Florida include the following:

  • Ÿ Petitioning to become an advocate and also to become a standby advocate in the meantime.
  •  Filing paperwork and submitting medical records.
  •  Attending a hearing.
  • Ÿ Taking an oath.
  • Submitting to a background check which includes a credit check and a level 2 background screening (including fingerprinting).
  • Taking a guardian advocacy course (requirements depend on the county). One that is approved for the 12th District (Manatee, Sarasota, and Desoto Counties) can be found here:  https://flguardianadvocate.org/
  • Filing plans of care at certain intervals of time for the rest of the guardian advocacy.

If guardian advocacy is approved, it is periodically re-evaluated and can be rescinded at any time through certain procedures or by petition of the child to be released from the guardianship.


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