As a parent of a child with developmental disabilities, there is a foundational understanding we have of that eighteenth birthday being a very scary one.
For 17 years, you lived in a world where you make all the decisions for your child, and your child may not be ready or able to make independent decisions now. Horror stories run rampant in parent circles that gather around for their developmentally disabled children. Too many of these horror stories are about how once their child turns 18 they lose all decision-making authority. Parents are no longer privileged to health information or are unable to enroll their children in day programs, or group housing.
It can be a terrible transition from solely responsible to uninvolved. At McCart & Tesmer, we understand those feelings, and our practice helps parents plan and prepare for that next chapter of parenting adult children with developmental disabilities. If your child lacks the ability to know, understand, and appreciate a particular legal document, your child can not consent to signing it. So, if your child is developmentally disabled, it’s likely they are not a candidate for a Power of Attorney or Health Care Surrogate. The document would not be valid. Instead, your child may be a candidate for Guardianship or Guardian Advocacy. Make sure you come to experts and avoid making the wrong judgment call.
Guardianship is the formal legal process for removing or delegating individual rights from one person and giving them to another, named the Guardian by law. Because of the nature of many developmental disabilities, a Guardian will usually ask a court to relinquish decision-making authority from the developmentally disabled person and give them to the Guardian, usually a family member or loved one.
This is different from a POA or a Health Care Surrogate, which does include the other party and protects their decision-making ability unless they are incapacitated or chose not to be involved in certain choices. Suppose the disabled adult is determined to be incapacitated by the court. In that case, the Guardian would make business, legal, financial, social, residential, medical, and educational decisions for the developmentally disabled person.
Unlike Guardianship, Guardian Advocacy is designed for families with a developmentally disabled child over eighteen years of age who was diagnosed with their disability before turning eighteen. Guardian Advocacy is only available to individuals with an intellectual disability, cerebral palsy, autism, Down syndrome, Phelan-McDermid syndrome, Spina Bifida, or Prader-Willi syndrome, according to Florida Statute 393.063. The condition must be severe enough that the court declares this person does not have and likely will not have the ability to make decisions about their person, property, or estate.
A letter from the child’s doctors outlining the conditions and prognosis is sufficient evidence for Guardianship Advocacy. Many parents are thrilled to know the option of Guardian Advocacy is available without having their child labeled “incapacitated”. The ability to have some or total decision-making authority without labeling their child incapacitated is one reason many parents and families are choosing to relocate to Florida. We have noticed an influx of parents taking advantage of Florida Guardian Advocacy laws because Florida is one of only a few states which currently has this summary guardianship option available. It’s honestly very progressive of us, and something that we hope will become available to more states in the future.
We have years of experience with the needs of families with developmental disabled loved ones. Please visit our website for other great resources for Special Needs Children if you’re interested in learning more. Our law firm at McCart and Tesmer is well versed in all types of family law, and if you don’t need advice on special needs legal documents, we have this blog for non-special needs adult children.