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Protecting Your Special Needs Child With a Guardianship Attorney

November 30, 2020 CSBB Blog

For families with a special needs child, daily life includes challenges that most people will never experience. Beyond the day-to-day, however, you also need to plan for their future. As hard as it may be, there will come a day when they turn 18 and are considered an adult under Florida law. This means that you can no longer make decisions on their behalf because, despite their ability, they are considered adults who can make their own decisions. Fortunately, you can make sure they are taken care of even after turning 18 with some careful planning. Our Palm Beach County guardianship attorney can help you understand your options. 

Guardianship of an Adult

One of the options you can pursue is to seek an adult guardianship. Unfortunately, this can be an extremely complicated and expensive process. It will require you to file two petitions – one seeking guardianship and the other asking the court to determine that your child lacks the capacity to make their own decisions. This requires that the court appoint an examining committee composed of three medical professionals who will evaluate your child and then file a report with the court. As you can imagine, this can be a very intrusive and demoralizing process if your child has some ability to make their own decisions but simply needs some help. 

Guardian Advocacy May Be An Option

Unlike a “full” guardianship described above, you may be able to petition the court for the appointment of a guardian advocate. This is a less cumbersome process because you do not ask the court to declare your child to be incapacitated. Instead, you must demonstrate one of the following: 

  1. Your child has a developmental disability related to retardation, cerebral palsy, spina bifida, autism, or Prader-Willi syndrome. The disability must be considered a substantial handicap, have manifested itself before the age of 18, and be reasonably expected to continue indefinitely. 
  2. Your child lacks the ability to make some, but not all, of the decisions required to care for themselves or their property. 

The second option may appear to be the broader of the two, but keep in mind that it may be easier to qualify for a guardian advocate if your child has been diagnosed with one of the qualifying conditions. Regardless, this is a gentler option for those who can have some degree of independence but need certain protections in place to keep them safe. An experienced Palm Beach County guardianship attorney can help you plan for the day when your child will be an adult.  

How a Guardian Advocate Can Help

Seeking the appointment of a guardian advocate is the best option for many families. It allows your child to have the independence they need but have the assistance of someone who has a legal obligation to act in their best interest. The guardian advocate can serve in two general roles: 

  • They can make personal decisions for your child concerning their health care, living arrangements, and other matters related to their daily lives and general well-being. 
  • They can make decisions related to your child’s property with court approval. 

The guardian advocate serves under the supervision of the court and is subject to regular reporting requirements. 

After You’re Gone

If you have a special needs child, their guardianship needs should be a part of your estate plan. If you have not yet drafted a will or trust or have not considered a potential guardianship, you should speak with an estate planning attorney as soon as possible to ensure that their needs will be met. 

Speak With a Palm Beach County Guardianship Attorney Today

The guardianship attorneys at Comiter, Singer, Baseman & Braun have extensive experience helping families protect their special needs children. If you would like to speak with a Palm Beach County guardianship attorney who understands the challenges you face, contact us toll-free at 800-226-1484 to discuss how we can help.

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