As we all know, parents make most important decisions for their children when they are younger. Once the children turn 18, however, the law gives them the right to make decisions for themselves, control over how they live, responsibility for their health, finances, etc. In unfortunate cases involving children with autism and other disabilities, the law creates an uncomfortable paradox: the children have reached the age of “majority,” but they do not have the “capacity” to make decisions for themselves? It seems natural that the parents would keep taking care of and making decisions for their special needs children over 18, but the law requires that the parents go to court and request a guardianship over their children.
A guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of an incapacitated person, be it a mental or physical incapacity. This occurs in court and decided by a judge. A guardian, once given authority, can make financial and personal decisions for another person. The law takes this very seriously – we are taking away someone’s rights and giving them to someone else. The responsibility on the Guardian is very high.
A guardian may assert any constitutional right on behalf of the “ward.” Financial management is very strict. An inventory of the child’s property may be required along with other financial information. This can be used to invest or disburse accordingly, and to properly maintain the assets for the benefit of the child. At the end of each year the guardian will have to provide the court with financial reports. In cases of large transactions, it may be necessary to request court approval. Moreover, a guardian may exercise the rights necessary to provide mental and medical care. The guardian will also determine the living arrangements, which are best suited for the child. On this aspect, the guardian has to file an annual report declaring how the child is doing and any medical changes.
Any Florida adult resident can be a guardian, whether related or unrelated to the child. Occasionally, a relative can still be a guardian even if they do not live in Florida. However, to be appointed as a guardian, a person cannot be a convicted felon. A parent may also choose to appoint an unrelated person to be a guardian for their child. Furthermore, there are individuals available who serve as professional guardians. Bank trusts and corporations can be appointed as guardians, although these appointments are reserved primarily to serve the monetary and property interests of a child and not the custody and control of the person. In the latter case, there should not be a concern for mishandling of funds. Bank trusts, corporations, and attorneys, all have a fiduciary duty to their clients. In other words, a breach of fiduciary duty will give rise to a legal cause of action for fraud or mismanagement.
In order to be adjudicated incapacitated there has to be a judicial determination and the court must agree there is a need for a guardian. In general, the court reviews the capacity of the person to manage at least some of his or her property and their ability to meet at least some essential health and safety requirements. Courts do not take these decisions lightly. These literally go to the core of our democracy: the right to self-determination.
To begin the process, the parent, through their attorney, files a petition with the court to determine the incapacity of the special needs child; the petition will include a brief explanation of the nature of the incapacity. Afterwards, the court appoints a committee that usually includes two physicians and a third person that can relay their expert opinion.
If the child has the ability to understand, the parent should prepare the child for this evaluation. This committee will evaluate him or her physically and mentally to assess their motor functions. The court in most cases will also appoint an attorney to represent the child and protect his or her best interest. Once the evaluation is finalized, if the majority of the examining committee concludes that the child is unable to perform certain tasks for themselves, the court schedules a hearing to determine whether he or she is totally or partially incapacitated. At the end of the incapacity hearing, a guardian is appointed if the child is found to be incapacitated. If the child is considered partially incapacitated then the guardianship will be a limited one. On the other hand, if the child is considered completely incapacitated then the judge will appoint a full guardianship. The state of Florida prefers using lesser restrictive alternatives to guardianship if available, which could adequately address a person’s incapacity. Therefore, in some cases the judge might discuss other options.
Guardianships are neither final nor permanent and can be modified at any time. In the event the parent decides to restore some rights to the child or change the appointed guardian, then a petition can be filed to this effect. When a guardian fails to take proper care of a child, a guardianship can be revoked and cannot be reinstated.
Importantly, it is essential to remember that options exist for parents of special needs children who will or have already turned 18. We recommend that you seek advice from a competent attorney.
If you need to discuss special needs planning in Miami-Dade, Broward, Monroe, Collier or Lee County Florida, schedule a consultation with the experienced attorneys at EPGDLaw today, located in beautiful Coral Gables. Call us at (786) 837-6787 or e-mail us to schedule a consultation.