Illustration by Daniella Young
Guardianship and Guardianship Alternatives
Turning 18 can be an exciting time of life. Once you turn 18, you are not only considered an adult, but also legally able to make decisions about your life, unless a court has ruled otherwise. In such cases, the court may choose someone else to make some or all decisions for you. This is called guardianship. But many alternatives to guardianship exist that support people with disabilities to have more control over their own lives.
Download the Guardianship and Guardianship Alternative Presentation
What is Guardianship?
If a court finds that a person does not have the ability to safely manage the things that belong to them and/or meet their basic health, safety and self-care needs, the court will rule that this person is incapacitated. In many cases, after a court decides that a person is incapacitated, they will choose someone else to make some or all the decisions for the incapacitated person. That person becomes the person’s guardian, and the situation is called a guardianship.
Guardianships are restrictive and may be unnecessary. They result in the loss of an individual’s right to make their own life choices. There are many other options that can be put into place to help individuals make safe choices about their life and the things that belong to them. In fact, a guardianship should only be considered when all the other options, called alternatives to guardianship, do not safely meet the needs of an individual. A guardianship is a last resort.
Alternatives to Guardianship
If you can receive important information and use it to safely make and communicate decisions about your life, you probably do not need a guardianship. By using the guidance, advice and support offered through alternatives to guardianship, you can keep your freedom to live as independently as possible. There are many different alternatives to guardianship that can be put into place to help you understand the risks and benefits associated with the decisions you make about your life.
Supported Decision Making is a process that we all use to make choices in our lives. Everyone needs help making decisions every day. If someone we want services from uses a specialized term for their business or procedure, it’s very hard to understand, almost like a foreign language. So, we ask for help from friends, family members, advocates and other trusted people. Once we get all the necessary information, we can make a good decision. This is Supported Decision Making, and it benefits everyone.
Supported Decision Making can be formalized in an agreement in which you detail all the areas of your life with which you would like help making decisions. In the agreement, you can say who you want to support you in each area, and how you do and do not want to be supported. For example, you might want to make your uncle your supporter for deciding where to live. You could state that your uncle will help you make a list of things you want in an apartment, find a realtor, visit apartments with you and help you set up automatic payments for rent. You could also state that you don’t want your uncle to talk to your landlord without you.
We all have some trouble making decisions. You have the right to make choices, but you can ask for help doing so. This means that you will be making the decision, not someone else. In Supported Decision Making, the person or people who will support you are chosen by you. They can help you make informed decisions by:
- Collecting and communicating with you about information related to a decision.
- Helping you understand and explore your options.
- Explaining the risks and benefits of different options.
- Giving guidance and recommendations.
- Assisting you in communicating and carrying out your decision.
Ultimately, the final decision is up to you. A Supported Decision Making agreement can be written out and signed by all parties, but this is not required.
In Florida, at least one court has found that Supported Decision Making agreements are a powerful alternative to guardianship. To learn more, listen to this podcast interview with a Disability Rights Florida client who was able to end his guardianship and enter a Supported Decision Making agreement that allowed him to keep all his rights: www.disabilityrightsflorida.org/podcast/story/episode_5_supported_decision_making.
For more information, see this guide’s section on Supported Decision Making. If you think a Supported Decision Making agreement sounds right for you, contact Disability Rights Florida at www.disabilityrightsflorida.org or 800-342-0823.
Living Will – A living will is a legal document that expresses a person’s wishes regarding the providing, withholding or withdrawal of life-prolonging procedures in the event of a terminal condition, end-stage condition or persistent vegetative state.
Health Care Surrogate – A Health Care Surrogate is a legal document that gives permission to another person, known as the surrogate, to receive an individual’s health information and make health care decisions for them. The Health Care Surrogate serves as preparation in the event an individual is no longer able to physically or mentally make informed health care decisions. The writing can provide for this authority to take effect immediately, or upon the legal determination of incapacity.
The advantages of a Health Care Surrogate are:
- Can be completed without an attorney.
- Offers an opportunity to use the Supported Decision Making process.
- Allows someone to speak on an individual’s behalf in the event they are unable to do so.
Florida Statute §765.102 provides “that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment.” Florida also provides suggested designation forms for Health Care Surrogates:
Power of Attorney – A Power of Attorney is a legal document that gives someone else the power to act in the place of another person. This means that another person has the authority to carry out activities they believe the other person would do for themselves. In order for a Power of Attorney to be created, the individual must be able to understand how it can be used and the effect it can have on their property.
In Florida, a Power of Attorney must be signed before two witnesses and a notary public to be considered a legal, binding document. If the individual later becomes incapacitated, the Power of Attorney can be revoked, unless the individual specifically agreed to allow the Power of Attorney to continue after a finding of incapacity. This is known as a Durable Power of Attorney.
A Durable Power of Attorney is a special kind of Power of Attorney because it remains intact, or “durable,” even if a person suffers mental incapacity in the future. A Durable Power of Attorney can, in addition to handling all financial decisions, authorize medical care. That includes consent to proceed with or terminate all medical and surgical procedures on your behalf, including an agreement that falls under the Life-Prolonging Procedures Act of Florida. Again, a Durable Power of Attorney lets someone act on your behalf if you cannot due to mental incapacity.
Banking Services – Banking services can be utilized to assist an individual with managing money. A joint bank account or being a co-signer on an account and using online banking for direct deposits and online bill paying are all examples of banking services that may assist an individual who needs support in managing their finances.
Trust Accounts – Trust accounts can also be utilized to assist individuals with disabilities in planning and maintaining quality of life. Revocable trusts and irrevocable trusts, such as Special Needs Trusts, are examples that can maintain one’s eligibility to receive public benefits. Please contact an attorney that specializes in setting up trusts to get more information on how they can be administered to protect the best interests of an individual with a disability.
If a person is receiving benefits from the Social Security Administration (SSA) and SSA determines that they are unable to manage their finances, a Representative Payee can be designated to receive and disperse the benefits in the best interest of the beneficiary. SSA determines if the individual needs a Representative Payee. When that determination is made, the Representative Payee will receive the individual’s payments and use the money to pay for their needs. SSA requires the Representative Payee to report how the money is spent. If an individual believes that their Representative Payee is misusing or stealing their benefits, an investigation can be conducted to determine if a new Representative Payee is needed.
Types of Guardianship
If someone believes that guardianship is the only option, and none of the alternatives to guardianship can meet the needs of an individual with a disability, it is important to know about the different types of guardianships under Florida law. Guardianships must be specific to the needs of the individual (referred to as a “ward” once someone is placed in a guardianship) and should not be any more restrictive than necessary.
There are some rights that may never be taken away, even if someone is placed in a full guardianship.
This means an adult who has capacity may select a person to serve as their guardian in the event that they become incapacitated in the future. The individual must express this decision in writing and file it with the court.
When an individual has capacity but needs assistance with handling self-care and the management of property because of their age or physical condition, they can ask the court to place them into a voluntary guardianship. Under a voluntary guardianship, the court will appoint a guardian to manage some or all of the ward’s property. A licensed physician must specify that they have examined the individual and that the individual is able to understand the nature of the guardianship. A voluntary guardianship may be terminated at any time by the ward. The ward may do this by filing a notice with the court of their decision to be released from the voluntary guardianship.
When a court is in the process of deciding whether someone is incapacitated, there are specific instances when an emergency temporary guardian is needed. The court will place someone in an emergency temporary guardianship if they believe someone may be in immediate danger or if someone’s property is at risk of being wasted, misappropriated or lost unless immediate action is taken. There has to be specific findings of this type of danger. The court will also specifically list the duties of the emergency temporary guardian in a written order. This type of guardianship has time limitations.
A court of law may place an individual in a limited guardianship when it finds that they are only partially incapacitated. To be partially incapacitated means that an individual can make some, but not all, decisions necessary to care for themselves and/or their property. Under a limited guardianship, the guardian only has the authority to take the specific actions decided by the court. The ward will keep all of the rights that are not specifically taken away in the court order.
A person who has a developmental disability can be placed in a guardianship under a guardian advocate even when a court has not determined them to be incapacitated. A person has a developmental disability if they have been diagnosed with an intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome or Prader-Willi syndrome. Only the specific rights which a person cannot manage are removed. The court may look at the individual’s support plan, their Individualized Education Plan (IEP) and/or other supporting documents to determine the severity of disability and level of need for assistance. The common areas that guardian advocates assist individuals with include:
- Giving informed consent for medical procedures and mental health treatment;
- Managing money and/or property;
- Applying for governmental benefits or entitlements; and
- Deciding on residential choices.
Florida law requires that guardians and guardian advocates consider the ward’s wishes and allow them to participate in decisions affecting their life. Furthermore, Florida law places a duty upon guardians to notify the court if they believe that the ward has regained capacity and/or one or more of the rights that have been removed should be restored.
The administrator of a facility may petition the court for the appointment of a guardian advocate upon the opinion of a psychiatrist that the patient is incompetent to consent to treatment. If the court finds that a patient is incompetent to consent to treatment and does not already have a guardian with the authority to consent to mental health treatment in place, the court shall appoint a guardian advocate. A person who is appointed as a guardian advocate must agree to the appointment.
When selecting a guardian advocate, the court shall give preference to a Health Care Surrogate, if one has been designated by the patient. If the patient has not previously selected a Health Care Surrogate, the court shall select a guardian advocate from the list of individuals below (in order), unless reason is given as to why the individuals would not serve as a guardian advocate:
1 The patient’s spouse.
2 An adult child of the patient.
3 A parent of the patient.
4 The next closest adult family member of the patient.
5 An adult friend of the patient.
6 An adult trained and willing to serve as guardian advocate for the patient.
The following people cannot be appointed as a patient’s guardian advocate:
- A professional providing clinical services to the patient under this part.
- The licensed professional who initiated the involuntary examination of the patient.
- An employee, administrator or board member of the facility providing the examination of the patient.
- An employee, administrator or board member of a treatment facility providing treatment to the patient.
- A person providing any substantial professional services, excluding public and professional guardians, to the patient, including clinical services.
- A creditor of the patient.
- A person subject to an injunction for protection against domestic violence under Florida Statute § 741.30, whether the order of injunction is temporary or final, and for which the patient was the petitioner.
- A person subject to an injunction for protection against repeat violence, stalking, sexual violence or dating violence under Florida Statute § 784.046, whether the order of injunction is temporary or final, and for which the patient was the petitioner.
The facility requesting must provide sufficient information so the guardian advocate can decide whether to give express and informed consent to the treatment, including information that the treatment is essential to the care of the patient, and that the treatment does not present an unreasonable risk of serious, hazardous or irreversible side effects. Before giving consent to treatment, the guardian advocate must meet and talk with the patient and the patient’s physician in person, if at all possible, and by telephone, if not.
If a guardian with the authority to consent to medical treatment has not already been appointed, or if the patient has not already designated a Health Care Surrogate, the court may authorize the guardian advocate to consent to medical treatment, as well as mental health treatment, and have the same abilities to make health care decisions as a health care proxy. However, the guardian advocate cannot consent to the following procedures unless they have received express court approval:
- Abortion.
- Sterilization.
- Electroconvulsive treatment.
- Psychosurgery.
- Experimental treatments.
The guardian advocate shall be discharged when the patient is discharged from an order for involuntary outpatient placement or involuntary inpatient placement or when the patient is transferred from involuntary to voluntary status. During an involuntary placement, upon sufficient evidence, the court may restore, or the hearing officer may recommend that the court restore, the patient’s competence.
When the court finds that an individual is unable to perform all of the tasks necessary to care for themselves or property, the court will rule that the individual is totally incapacitated. This is known as a full or plenary guardianship. This is the most restrictive type of guardianship, and few people require it.
When someone is placed in a full guardianship, the guardian can make the following decisions for the ward:
- To enter into contracts.
- To sue and defend lawsuits.
- To apply for government benefits.
- To manage the ward’s property.
- To decide where the ward will live.
- To agree to medical and mental health treatment.
- To make decisions about the ward’s social environment or other aspects of their life.
When someone is placed in a full guardianship, they may lose the following rights, but these rights cannot be given to the guardian:
- To marry.
- To vote.
- To personally apply for government benefits.
- To have a driver license.
- To travel.
- To seek or retain employment.
There are some rights that may never be taken away, even if someone is placed in a full guardianship. These include:
- To have an annual review of the guardianship report and plan.
- To have continuing review of the need for restriction of the ward’s rights.
- To have their rights restored at the earliest possible time.
- To be treated humanely, with dignity and respect, and to be protected against abuse, neglect and exploitation.
- To have a qualified guardian.
- To remain as independent as possible, including having the ward’s reasonable preference as to place and standard of living honored.
- To be properly educated.
- To have their property managed in a responsible
way, and to be informed about how their property
is managed. - To receive services and rehabilitation necessary to maximize the quality of life.
- To be free of discrimination related to their incapacity.
- To have access to the courts.
- To be represented by an attorney.
The guardian cannot make the following decisions unless the court specifically allows it:
- Commit the individual to a facility, institution or licensed service provider without going through formal placement proceedings.
- Consent to experimental biomedical or behavioral procedures.
- Petition to dissolve the individual’s marriage.
- Consent to termination of the individual’s parental rights.
- Consent to a procedure for sterilization or abortion.
In Florida, if a person who was previously determined to be incapacitated later regains the ability to make willful and knowing decisions about their life, that person, or another interested person, may ask the court to restore capacity. This is called a suggestion of capacity. Under Florida Statute § 744.464, once a person files a suggestion of capacity with the court, the court will send a physician to examine the ward and make a recommendation regarding their capacity.
The court will also notify the guardian about the suggestion of capacity. The guardian has the option to object or disagree with the suggestion of capacity. If there are no objections filed, and the physician establishes that all or some of the ward’s rights should be restored, the court will enter an order to restore the rights that were previously taken away in accordance with the physician’s findings.
If someone files an objection with the court, or if the physician finds that restoration to capacity is not appropriate for the ward, the case will move forward to a hearing. During the hearing, an attorney will represent the ward, and the court will weigh all evidence to determine if the suggestion of capacity shall be denied or if the ward’s rights should be restored.