Legal Guides/Information
The Individuals with Disabilities Act (IDEA) and its implementing regulations (Code of Federal Regulations) include guidelines for informing students with disabilities of their legal rights as adults when they reach the age of majority. At the age of majority, 18 years of age in Florida, the student gains all of the legal rights and responsibilities of an adult. At this time, the educational decision-making rights of parents, including parents of a student with a disability, transfer to the young adult.
Rule 6A-6.03311(10), Florida Administrative Code (FAC), Procedural Safeguards for Students with Disabilities, establishes procedures for school districts to inform parents and students of the longstanding provisions of state law regarding the rights and responsibilities that transfer to an individual upon attaining the age of 18. The right to notice under this rule is retained as a shared right of the parent and the student except as provided in paragraph (10)(d) of this rule. The rule states in part:
“(a) at age eighteen (18), all other rights afforded to parents under Part B of the Individuals with Disabilities Education Act transfer to the student, unless the student has been determined to be incompetent under state law as established by Chapter 744, F.S., or a guardian advocate has been appointed to make decisions affecting educational services as provided by Section 393.12, F.S.
(b) The school district shall notify the student and the parent of the transfer of rights when the student attains the age of eighteen (18).
(c) The school district shall provide all notices required by Rules 6A-6.03311 and 6A-6.03028, FAC, to both the student who has attained the age of eighteen (18) and the student’s parent.
(d) For students who have attained age eighteen (18) and are incarcerated in a juvenile justice facility or local correctional facility, all rights accorded to parents under this rule transfer to the student, including the right to notice as described in paragraph (10)(a) of this rule.
(e) If a student with a disability has reached the age of majority and does not have the ability to provide informed consent with respect to his or her educational program, procedures established by statute may be used by the parent to:
1. Have their child declared incompetent and the appropriate guardianship established in accordance with the provisions of Chapter 744, F.S.;
2. Be appointed to represent the educational interests of their child throughout the child’s eligibility for a specially designed instruction and related services consistent with Rules 6A- 6.03011 through 6A-6.03018, and Rules 6A-6.03020 through 6A-6.03023, FAC, in accordance with Section 393.12, F.S.; or,
3. Have another appropriate individual appointed to represent the educational interests of their child throughout the child’s eligibility for specially designed instruction and related services consistent with Rules 6A-6.03011 through 6A-6.03018, and Rules 6A-6.03020 through 6A-6.03025, FAC, if the parent is not available in accordance with Section 393.12, F.S.”
Some students with disabilities may need assistance with making adult decisions. Florida law provides a number of decision-making options including banking services, power of attorney, representative payee, advance directives, medical proxy, trust, guardian advocacy, and guardianship (Florida Developmental Disabilities Council, 2010, p. 19).
Resources in the section below will provide guidance and additional information for schools, families and students.
Resources
Consider the Alternatives: Decision-Making Options of Young Adults with Intellectual Disabilities - Think College Insight Brief
This brief defines some of the options and possible ramifications of guardianship and less-limiting alternatives through presenting special circumstances for consideration and suggestions for ways to promote self-determination.
Guardian Advocate Information and Forms
This webpage from Florida’s Ninth Circuit Court (for Orange and Osceola counties) contains information and forms for obtaining legal guardianship for a person with a developmental disability (intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome) who “lacks the decision-making ability to make necessary decisions relating to daily life.” The guardianship process should be similar in other counties.
Legal Survival Guide
This guide discusses a number of legal issues related to attaining the age of majority in Florida. It helps high school students prepare for their transition to adulthood and enter an exciting world of rights, responsibilities and obligations.
Justice Teaching
This initiative of the Florida Supreme Court was developed to improve the average citizen’s knowledge of legal principles and the legal system. The site contains lesson plans and resources for teaching elementary, middle, and high school students, including ESE students. The "You and the Law" lesson plan and PowerPoint presentation are designed to accompany the Legal Guide for New Adults publication.
Lighting the Way to Guardianship and Other Decision-Making Alternatives: A Manual for Individuals and Families
This manual was jointly developed by the Agency for Persons with Disabilities, Guardian Pooled Trust, Office of Public Guardian, Inc., Statewide Public Guardianship Office, and the Florida Developmental Disabilities Council, Inc., to increase the knowledge of individuals with disabilities and their families about decision-making options available in Florida.
Supporting Choices
The Supporting Choices website, part of the North Florida Office of Public Guardian, shares information and resources designed to address these questions and more as well as resources for specific audiences, including families and educators.
References
Florida Developental Disabilities Council, Inc (2010). Lighting the way to guardianship and other decision-making alternatives: A manual for individuals and families. Tallahassee, FL: Author. Retrieved from https://www.fddc.org/sites/default/files/LTW_FamilyManual2017%20-%201.pdf
Rule 6A-6.03311., F.A.C., Procedural for Safeguards and Due Process Procedures for Parents and Students with Disabilities
Retrieved from http://www.fldoe.org/core/fileparse.php/7568/urlt/0074524-rule.pdf