Guardianship removes an adult’s right to make decisions about the areas of his or her life that a court has decided the person is not competent to make their own decisions about. The law refers to a person for whom a guardian has been appointed as a “ward” of that guardian.
Each of Florida’s guardianship statutes require that even when a right has been taken from an individual and given to a guardian or guardian advocate, that guardian is still required, to the extent possible, to consider the individual’s wishes and to allow the individual to participate in decisions affecting their life.
Whether an individual can give consent to a decision depends on the complexity and the seriousness of the decision to be made. Those who can recognize their own need for help with decision-making may not require guardianship, but only advice, information, and assurance when evaluating other options that may be available rather than pursuing guardianship. There are ALTERNATIVES to guardianship that can serve to meet these needs.
Age of Majority and Transfer of Rights
According to the Individuals with Disabilities Education Act (IDEA), the transfer of parental rights can take place when a child with a disability reaches the age of majority under State law which applies to all children (except for a child with a disability who has been determined to be incompetent under State law)." In Florida, individuals reach the age of majority and receive the transfer of their rights at age 18 (Section 743.07, Florida Statutes (F.S.). In other words, at age 18, the right and responsibility to make decisions transfers from the parent to the child.
Turning 18 - Changes to Expect
Disability Rights Florida explains the five areas of change for a youth who turns 18.
- Students receive the right to make educational decisions.
- Eligibility for Supplemental Security Income (SSI) benefits will be re-determined using an adult disability standard (usually in the month before the 18th birthday).
- "Health insurance may change. Florida law requires dependent coverage to be offered until the dependent is age 30. Adults whose health insurance covers youth should check their policies" (Disability Rights Florida, n.d.).
- Students receive the right to vote and must register by mail or online with the state. One must turn 18 by election day to be eligible to vote in that election, but registration can be completed at age 16 and after.
- All males are required to register for military service within 30 days of turning 18. There is not a general exemption from registration based on mental or physical condition, but there are certain criteria that can provide exemption. Find out more at, Exemption from Selective Service Registration - https://www.sss.gov/faq/.
Florida School Systems - Students Turning 18
It is best practice for the upcoming transfer of rights to be discussed with the student and parents before the student turns 18. Preparing students for decision-making about their lives is a powerfully important process. Federal and state requirements include the following:
- At least one year prior to a student turning 18, the student and parents must be notified that the transfer of rights to the student will occur at age 18. This must be documented in the individual educational plan (IEP).
- A separate notice will be provided to the parents and student closer to, but still prior to the student's 18th birthday.
- At the age of 18, students will have the right to make educational decisions.
It is important for both the student and the family to understand that there are a variety of options that lie between full guardianship and full independence. The least restrictive option is the best option in order to allow the student the ability to make as many life decisions as possible.
Decision-Making Alternatives: Choosing the Best Option
When selecting a decision-making alternative, it is suggested that the best option is the one that will give the student who is becoming an adult the maximum amount of decision-making ability while also safeguarding his/her health and general welfare. Some of the options listed below can be combined in a way that matches the level of assistance that the young adult needs. Finding the right balance between assistance and autonomy is the key to ensuring the student has the opportunity to lead the most self-determined life possible.
This option allows the student to make his/her own decisions with the option to get support from a group of trusted family members, friends and/or professionals. With this model, an individual can choose to make the decisions he/she wishes to make and choose to access assistance where needed. The National Resource Center for Supported Decision-Making explains, "Supported Decision-Making is just a fancy way of describing how we all make choices. We all need help making decisions, every single day." Find out more on their website - http://supporteddecisionmaking.org/.
While supported decision-making does not have legal authority, some are advocating for legal recognition. Supported decision-making pilot projects are being conducted in multiple states, including Florida.
Mid-Range Decision-Making Options
Mid-range decision-making options include a variety of choices that can be used individually or combined to provide the amount of support an individual needs. These options are described as follows:
- Banking Services - A power of attorney that specifies the agent has the authority to conduct banking transactions on behalf of the person includes the following: establish, continue, modify, or terminate a banking account; contract for services available from a financial institution; withdraw money or property of the principal deposited with or left in the custody of a financial institution. (Section 709.2208, F.S.)
- Power of Attorney - A Power of Attorney is a legal document through which a person gives someone (agent) the authority to act on his/her behalf, and the individual maintains the right to act on behalf of himself/herself. A Durable Power of Attorney is when the authority to act on the person's behalf does not end if the person suffers mental incapacity at some point in the future. (Section 709.2012, F.S.)
- Advance Directives - Advance Directives are witnessed, written documents or oral statements that express a person's desires concerning health care. A Living Will is an advanced directive that expresses a person's instructions regarding life-prolonging procedures. A Health Care Surrogate is an advanced directive in which a person designates someone to make health care decisions and apply for health care benefits. (Chapter 765, F.S.)
- A legal document called a Trust can be used to give someone the authority to manage the property of a person who needs or wants assistance.
- Trusts - A Special Needs Trust assists a person with a disability to maintain needs-based benefits, such as Medicaid health insurance by excluding certain assets and income. See Florida Medicaid.com for more information.
- Medical Proxy - A Medical Proxy is used when a person is or has become unable to make health care decisions and an advance directive has not been established. The patient's legal guardian could be assigned as the medical proxy by a judge or others could serve as the medical proxy, such as the patient's spouse, adult child, parent or adult sibling. (Section 765.401, F.S.)
- Representative Payee - A Representative Payee is an entity selected by SSA (preferably family or friends, but could be an organization) to manage an individual's SSA benefits. This means the beneficiary's benefits will go to the Representative Payee for appropriate use. The Social Security Administration (SSA) benefits must be used to provide food, clothing, shelter, medical care and personal comfort items for the SSA beneficiary. All remaining funds must be saved in an interest-bearing account or savings bonds to be used for the SSA beneficiary's future needs. (Section 402.33, F.S.)
More Restrictive Options
- Guardian Advocacy – This option is available for persons with a developmental disability (DD). Individuals cannot be determined as in need of a guardian based only on the fact that they have a DD. However, if a person with a DD lacks the capacity to make some (not all) decisions related to care for person or property, a Guardian Advocate may be appointed by a circuit court to assist with decision-making in the areas of the person's need. (Section 393.102, F.S.)
- Limited Guardianship – This option is used when a person has been found to lack the capacity to exercise some, but not all, of their rights. The court will appoint a guardian to exercise rights that can legally be delegated. (Section 744.102, F.S.)
- Full Guardianship - This option is used when a person has been found to lack all capacities to care for self and property. The court (circuit court) will appoint a guardian to exercise all of a person's rights and powers that can be legally delegated. (Section 744.102, F.S.) .
American Civil Liberties Union. (n.d.). Supported decision-making: Frequently asked questions. https://www.aclu.org/sites/default/files/field_document/faq_about_supported_decision_making.pdf
Disability Rights Florida. (n.d.). What are the alternatives to guardianship? https://disabilityrightsflorida.org/disability-topics/disability_topic_info/what_are_the_alternatives_to_guardianship
Florida Developmental Disabilities Council. (2016.). Developing abilities and restoring rights: A guide for supporting persons with disabilities.https://fddc.org/wp-content/uploads/2020/08/Developing-Abilities-Restoring-Rights-Guide.pdf
Florida Medicaid. (n.d.). Special needs trust. http://www.floridamedicaid.com/index.php/special-needs-trust.html
The Florida Bar, (2018). Guidance offered for parents of teens with special needs. https://www.floridabar.org/the-florida-bar-news/guidance-offered-for-parents-of-teens-with-special-needs/
The National Resource Center for Supported Decision-Making. (n.d.). Stories of supported decision-making. http://supporteddecisionmaking.org/
Section 393.12, Florida Statutes. (2021). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0300-0399/0393/Sections/0393.12.html
Section 402.33, Florida Statutes. (2021). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0402/Sections/0402.33.html
Section 709.2102, Florida Statues (2021). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/0709.html
Section 709.2208, Florida Statutes. (2021). http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0709/Sections/0709.2208.html
Section 744.2102, Florida Statutes. (2021). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0744/0744.html
Section 744.3115, Florida Statutes. (2021). http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=Chapter+765&URL=0700-0799/0744/Sections/0744.3115.html
Section 765.401, Florida Statutes (2021). http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0765/Sections/0765.401.html