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How do I Remain the Guardian for my Special Needs Child?

Special Needs 2

If you are the parent of a special needs child, you probably know that there are steps that need to be taken before your child turns 18 in order to retain legal guardianship. Those steps need to be taken through the Florida court system, which can be intimidating and confusing. Luckily, help is available by obtaining a special needs planning attorney at The Mattar Firm.

How the Process Works

In order to be designated a guardian, in most cases, a family member must petition the Court to determine that the person is incapable of attending to his or her affairs due to a disability or lack of capacity. The Court is involved because becoming a guardian is a legal proceeding. The guardian is the person the Court appoints to oversee the disabled person’s affairs and, to that point, the person who makes decisions for them. In Florida, there are two kinds of guardianships for adults designated by state statute: Guardianship of an Adult and Guardian Advocacy.

What is the Difference Between the Two?

Under the statute, guardianship of an adult is meant for adults with disabilities. The process of gaining guardianship of an adult is fairly complicated and can be expensive. Along with petitioning the Court to become a guardian, the Court also needs to be petitioned to determine whether the person can make their own decisions. This involves the Court appointing a three-person committee made up of medical professionals to examine the person in question and send reports to the Court. Those reports will inform the Court on whether the person has the capacity to make their own decisions and whether they are in need of a guardian.

The guardian advocacy program offers an easier, as well as less expensive, route to becoming a legal guardian. This program is designed specifically for people with developmental disabilities. As such, it only requires a caretaker to petition the Court to become a guardian, as opposed to also petitioning the Court to determine the level of disability.

How Do I Know if My Child Qualifies for Guardian Advocacy?

Florida has statues on the books that define what a developmental disability includes. For instance, according to the law, a developmental disability includes “a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.”

Further, a section of the law goes on to state that guardian advocacy is needed when a child “lacks the decision-making ability to do some, but not all, of the decision-making tasks necessary to care for his or her person or property or if the person has voluntarily petitioned for the appointment of a guardian advocate.”

How Do I Establish Guardianship of My Child?

The first step is to obtain a special needs planning attorney familiar with becoming a guardian and filing a Petition for Guardian Advocate (the guardian in a guardian advocacy) with the Court. Florida requires those petitioning the Court for guardianship to obtain an attorney. The Court will appoint a special needs planning attorney to represent your special needs child once the petition is filed. That special needs planning attorney will meet with you and your family to determine whether a guardian advocacy is warranted and whether you should be appointed as the guardian advocate. A hearing will be held after that meeting. If the court-appointed attorney agrees with your guardian advocacy petition, you will be designated as your child’s guardian advocate. If your special needs child is nearing the age of 18, it is important to contact a special needs planning attorney at The Mattar Firm and begin the process of becoming your child’s advocate. 

Contact The Mattar Firm

At The Mattar Firm, our experienced special needs planning lawyers can help guide you in taking the necessary steps to retain legal guardianship of your child. Contact our special needs planning lawyers now at 239-222-2222.


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