Independent Living Program - Florida's Center for Child Welfare

Guardian Advocate (Developmental Disabilities)Florida Statute 744.3085Guardian advocates assist persons with developmentaldisabilities. They may be appointed by the circuitcourt under this statute, or by the probate court underFlorida Statute 393.12.Guardian Advocate (Developmental Disabilities)Florida Statute 393.12A Probate court may appoint a guardian advocatewithout an adjunction of incapacity if the personlacks the capacity to make some, but not all, ofthe decsions necessary to care for his/her person,property or estate. Any interested person maypetition for the appointment of a guardian advocate.The ward may also voluntarily petition. Only thoserights the person cannot manage are removed.The four areas that some people with developmentaldisabilities may have difficulty handling, or for whichsociety insists they have a substitute decision makerare:• Giving informed consent for medical, dentaland surgical procedures• Managing money and/or property• Applying for governmental benefits orentitlements• Deciding on residential choicesThere are important procedural differences betweena Limited Guardianship under Chapter 744 andGuardian Advocacy under Chapter 393. Chapter744 requires a three member examining committeeto make a recommendation that the personlacks certain capacities before a court can orderappointment of a guardian. Under Chapter 744, theexaminers may have little or no expertise in disability,and the process may be much more time consumingand expensive for the petitioner. On the other hand,the potential ward has due process protections thatdo not exist under Chapter 393. Under Chapter 393,there is no requirement for an examining committeeto be appointed, or for any court finding of incapacityof the ward before a guardian advocate is appointed.Instead, the Court may look at the individual’ssupport plan, their IEP or other documents todetermine the level of disability and need forassistance.Under either procedure, once a guardianshipis established, the bottom line is the same. Theindividual loses their right to make importantdecisions about key aspects of their own life.The statutes require that evenwhen a right has been takenfrom the individual and given toa guardian or guardian advocate,the guardian is still required, tothe extent possible, to considerthe ward’s wishes and to allowthe ward to participate indecisions affecting the ward’s life.Whether a person can giveconsent to a decision dependson the complexity and theseriousness of the decision to bemade. Those who can recognizetheir own need for help with decisionmakingmay not require guardianship,but only advice, information, andassurance when evaluating otheroptions that may be available ratherthan pursuing guardianship. There areALTERNATIVES.25Alternatives to GuardianshipFAMILY AND FRIENDS - Sometimes attentive supportfrom family and friends can be enough to assist theperson to manage his own personal and financialaffairs.ADVANCE DIRECTIVES - This is a document thatexpresses a person’s desires concerning healthcare,or other affairs. As the term indicates, this option iswritten in advance of the need. The person must becompetent at the time he or she signs the directive andcapable of giving informed consent. Examples of thesedirectives include:DURABLE POWER OF ATTORNEY –This legaldocument gives the designated person the legalauthority to make decisions of specific matters for theperson who created it. A DURABLE power of attorneycan be exercised until the death of the person whogave it, even if the person becomes incapacitated.LIVING WILL – A legal document that directs theproviding, withholding, or withdrawal of life-prolongingmedical procedures if you are unable to make yourown decisions and you have a terminal illness or are ina persistent vegetative state.HEALTH CARE SURROGATE – A written documentnaming another person as your representative tomake medical decisions for you if you are unable tomake them yourself. You can include instructionsabout any treatment you want or do not want, similarto a living will. You can also designate an alternativesurrogate. If you designate a health care surrogateand alternate be sure to ask them if they agree to takethis responsibility, discuss how you would like mattershandled, and give them a copy of the document.It is important that any advance directive be witnessedby at least two individuals. Laws on health careadvance directives are in Chapter 765 of the FloridaStatutes (available at your local library or at www.leg.state.fl.us ).