Whether your special needs child needs a guardian or conservator depends entirely on their specific needs and conditions. The attorneys of Beller Law, PL can explain guardianship and conservatorship under Florida law to help you understand what could be best for your family.
Notice: Please note that Rebeccah Beller is a Florida attorney specializing in guardianship matters in the state of Florida. Our legal team only handles guardianships within Florida and cannot provide assistance for cases outside of this jurisdiction.
Guardianship for Special Needs Children
When a child, special needs or otherwise, is under 18, parents can make all of the decisions about the child’s life, including their medical and financial affairs. When a child turns 18, however, they become an adult and can make decisions for themselves. This could be a concern if you have a special needs child, because doctors and other professionals and businesses may no longer communicate with you directly about your child, and your child has the legal right to sign contracts, make their own health care decisions, and so on. Perhaps you are considering bringing guardianship action so that you can continue to manage your child’s affairs.
What Is Guardianship?
First, it’s important to understand what guardianship is under Florida law. A guardianship is a legal proceeding in which a court decides whether to remove certain rights from a person, called the “ward,” and give those rights to an appointed guardian, in order for the guardian to be able to make decisions on the ward’s behalf. You must prove that the ward is incapacitated or unable to make appropriate decisions in those particular areas. If you wish to ensure that your special needs children have a guardian, it will help to know the various types of guardianship in Florida.
Types of Guardianships
Your goal could be to ensure that your special needs child can take care of themselves and meet their financial and physical needs while maintaining an appropriate amount of autonomy. Florida law provides several different types of guardianships that provide a special needs child with varying levels of autonomy, depending on their particular needs and abilities. Below, we describe some guardianships under Florida law.
Plenary Guardianship
A plenary guardian is a full legal guardian who can make all decisions for the ward. Under the law, however, a judge must determine that the ward lacks the capacity to take action to care for themselves and their property. This type of guardianship is expansive and is only for those deemed fully incapacitated.
Limited Guardianship
A limited guardian can exercise rights and make decisions on behalf of the ward to the extent that the court permits. Essentially, the court will specifically designate what decisions the limited guardian can make, and the ward retains the right to make all remaining decisions. As with a plenary guardianship proceeding, the court will hold a hearing to determine whether the ward lacks the ability to make certain decisions or do specific tasks necessary for their care before appointing a limited guardian.
Voluntary Guardianship
If a person believes they need help making decisions or taking care of themselves, they can petition the court for a voluntary guardian. A court can appoint a guardian even though the person doesn’t lack capacity because they are requesting it for themselves. The ward can then end voluntary guardianship at any time.
Guardian Advocate
A guardian advocate is a type of guardianship that is strictly for adult children who have had a particular medical or mental health issue since childhood that the law determines immediately qualifies them for a shorter guardianship proceeding. For instance, a child born with Down Syndrome may automatically qualify to have a guardian appointed without a judge having to determine that the child lacks capacity. However, the judge would still decide the scope of decision-making to grant a guardian. The ward has a right to a court-appointed attorney or attorney of their choice at these hearings. A court may appoint a guardian advocate under the following circumstances.
Mental health
A court may appoint a guardian advocate for a person who cannot consent to mental health treatment. A psychiatrist’s diagnosis informs the court’s decision.
Developmental disability
A court may appoint a guardian advocate to help a person with developmental disabilities if they lack the decision-making ability to take care of some, but not all, of the decision-making tasks necessary to care for themselves. The court only assigns the guardian advocate the rights concerning the limited areas where the ward cannot act.
What Is Conservatorship?
Perhaps you believe that, rather than a guardian, you need a conservator for special needs children. But what is conservatorship under Florida law?
In Florida, a conservatorship is used in particular circumstances, which vary in other states. Perhaps you believe that, if you have special needs children, a conservator would be more appropriate. However, a conservatorship in Florida is a process used only when someone goes missing. Florida law refers to such a person as an “absentee.”
A person is considered an absentee under the following circumstances:
- They go missing while serving in the military, Red Cross, merchant marines, or something similar during a period of hostilities between the U.S. and another country; or
- They disappear due to a mental health issue or under circumstances that indicate they might have died.
Unless your special needs child has disappeared under these circumstances, you won’t need a conservatorship in Florida.
Does My Special Needs Child Need a Guardian?
Perhaps you wonder if you’ll need a guardian for your special needs child. Every person’s conditions, abilities, and limitations are different. Although a child has disabilities, they might still be able to live independently with the support of their family and friends.
The first step is to speak with your child’s doctor before they turn 18. Their doctor can help you better understand the level of care your child needs, as well as the appropriate level of autonomy. They can help you and your child decide on the best plan for your child’s future.
You could also discuss your child’s needs and care with an attorney. An attorney can advise you on guardianship law and other alternatives that may be appropriate for your family, including the financial considerations that may involve establishing a trust or other vehicles to help assist your special needs child in an ongoing manner.
Contact Beller Law, PL, for Help with Guardianships and Conservatorships
Florida’s law regarding guardianship and conservatorship is complex, and the legal processes can be overwhelming. Beller Law, PL can help. Our experienced North Florida attorney knows the law and procedures for getting a conservator or guardian for special needs children. We can advise you on your rights and obligations to help you decide what’s best for you and your child.
Contact us today.