By: Kevin R. Albaum
Clark, Campbell, Lancaster & Munson, P.A.
Q: My child has a developmental disability and is about to turn eighteen years old. How do I protect and continue to care for him?
A: The proper legal mechanism to safeguard your child depends on a variety of factors to be discussed between loved ones and an elder law attorney, including vulnerability to exploitation, autonomy, the need to protect or remove legal rights, assistance provided by family, and mental capacity exists to sign legal documents. After this initial discussion, you may determine that the best option is for one or both parents to apply to become a Guardian Advocate over the child and/or his property upon him turning eighteen.
The approach varies from child to child, as Florida law requires using the least restrictive alternative to Guardianship or Guardian Advocacy whenever possible. Some less restrictive alternatives include implementing a Durable Power of Attorney, Health Care Surrogate, Living Will, or Trust.
Appointment of a Guardian Advocate is appropriate under Florida law if a developmentally disabled person lacks decision-making ability to do some, but not all, of the tasks necessary to provide for himself and/or his property. The process usually begins with an attorney filing a petition for a Guardian Advocate to be appointed and providing notification to all of the disabled individual’s next of kin. The Court appoints an attorney to meet with the alleged developmentally disabled individual to ensure that a need for a Guardian Advocate exists and that the individual’s rights are protected. If, at a hearing shortly after the filing of the petition, the court determines that evidence supports Guardian Advocacy, a Guardian Advocate is appointed and some, but not all, rights are removed and delegated to the Guardian Advocate.
The appointed Guardian Advocate is required to file reports and accountings to the Court for annual review. The Court continues to oversee the Guardian Advocacy for the life of the Guardian Advocacy unless it is determined that a Guardian Advocate is no longer necessary for the individual, in which case the Guardian Advocacy would be terminated by the Court.
The September 24th edition of “The Law” will cover whether land surveys are needed when purchasing a home.
Kevin Albaum is an estate planning and elder law attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to firstname.lastname@example.org.