By Rebecca M. Vaccariello

The parents of special needs children often do not realize that they may need to file a court proceeding for guardianship when their child is about to become an adult in the eyes of the law, which is 18 years of age in Florida.

Minor Children and Guardianship Considerations
When a child is a minor, under 18 years old, parents can make decisions and assist their child without a formal guardianship having been commenced. All parents are “natural guardians” of

their minor birth or adoptive children. A natural guardian has all the powers that a guardian of the person would have, but do not have all the powers that a guardian of the property would have. For example, if any minor child inherits or receives settlement proceeds that exceed $15,000, a parent or other adult is required to be appointed as a guardian of that property by the court. Additionally, all parents should consider naming a proposed guardian for their minor children in their estate planning documents. If both parents of a minor child are deceased or become incapacitated, the court is required to determine who the guardian will be unless the parents have named a guardian in their estate planning documents. Parents should confirm that their proposed guardian is both willing to so serve and is qualified to serve under Florida law. Many of these considerations for minor children are the same whether your child is typically developing or has special needs.

Adults with Special Needs and Guardianship Considerations
Once children turn 18 years old, the parents are no longer their natural guardians. For parents of typically developing children, having a child reach the age of majority normally means that their child, now an adult, can legally make all required personal and financial decisions for themselves. For parents of special needs children, if their children are not able to make all of the necessary personal and financial decisions, the parents need to consider guardianship options. Because parents are no longer the natural guardians once a child turns 18, even parents are required to commence a guardianship proceeding in this situation. There is no automatic extension of natural guardianship for parents whose children continue to need their assistance past the age of 18. This comes as a surprise to many parents. The good news is that there are multiple options under Florida law depending on the child’s abilities.

Guardianship Options for Adults with
Special Needs
1. Power of Attorney. The first option does not involve guardianship at all. If a person has sufficient capacity to do so, they can execute a power of attorney document, allowing a parent or other person, to act on their behalf for designated decisions related to their property. Other documents can be executed for their health care needs.

2. Guardian Advocacy. Florida has an option specifically for the developmentally disabled that allows the court to appoint a “guardian advocate,” instead of a guardian, in cases where the individual has the ability to make some, but not all, of the decisions needed to care for their person or property. Guardian advocacy is a possibility if an individual has a developmental disability which is defined as a disability that manifested before the age of 18, is expected to continue indefinitely, constitutes a substantial handicap and is based on a condition or diagnosis of retardation, cerebral palsy, autism, spina bifida or Prader-Willi syndrome.

The court does not adjudicate incapacity when appointing a guardian advocate, which is a less restrictive form of guardianship and should be used if appropriate. The annual accounting requirements may be waived under this type of guardianship and the guardian advocate is not required to have an attorney.

3. Guardianship. When adults have mental and physical disabilities, due to any cause, they may need a guardian appointed to make personal and financial decisions for them. When children with special needs are reaching the age of majority, parents need to consider whether filing for a full guardianship may be needed. A guardianship can be limited in scope depending on the individual’s abilities. In cases where a person cannot care for themselves or their property at all on their own, the court will normally appoint a “plenary guardian” which is a guardian of the person and property who can exercise all rights that are allowed to be delegated under the law.

Additional Considerations
Parents of minor children with special needs should consult with an attorney to make sure they understand all their options relating to guardianship and they may also need to coordinate their trust and estate planning accordingly. For example, an individual who receives an inheritance may have their government benefits affected and a special needs trust may be a good idea, both for receiving a potential inheritance and also for providing for the child during the parents’ life without triggering additional income to the child.

The options involving guardianship are best navigated with assistance because in cases where a child is able to make some of their own decisions, the realm of options are greater than can be addressed in detail here, and in the case of a child who needs a full guardianship, the court filings required are difficult to navigate without counsel and the court system requires that the guardian be represented by counsel.

This Article does not constitute legal advice and may not be relied upon as such.  Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.

Rebecca M. Vaccariello’s practice focuses on business, probate and general civil litigation.  Ms. Vaccariello is licensed to practice law in the states of Florida and New York.  Prior to joining Salvatori, Wood, Buckel, Carmichael & Lottes,  Ms. Vaccariello served as a judicial law clerk to a civil trial judge in New York for over five years, and, prior to that, worked for six years in a general practice litigation firm in New York.

Salvatori, Wood, Buckel, Carmichael & Lottes
239.552.4100 | www.swbcl.com

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