Submitted by: Peggy R. Hoyt, J.D., M.B.A., The Law Offices of Hoyt & Bryan, LLC, Family Wealth & Legacy Counsellors, One Senior Place Resident Business

Have you ever wondered who will take care of and provide for your child with special needs after you are gone? How do you pass an inheritance on to your special needs person (when he or she cannot have more than $2,000.00) without affecting their governmental benefits?

If you have a loved one with a disability, proper planning is a necessity. Don’t jeopardize your child’s future and put their inheritance at risk through the loss of government benefits. A special needs trust may allow you to maintain control over assets for the benefit of your special person while ensuring eligibility for those valuable medical, housing and support benefits.

Upon attaining age eighteen (18), a child becomes an adult in the eyes of the law. This is true even for developmentally disabled children. A guardian advocacy is a summary form of guardianship designed for families with a developmentally disabled child. In a guardian advocacy, no determination of incapacity is required. A letter from the child’s doctor outlining the child’s condition and prognosis takes the place of an incapacity determination. As with other guardianships, guardian advocacies must be filed with the court in the county of residence and annual reports will be required. In most cases, the child’s parent(s) will be appointed as the guardian advocate.

Under F.S. Chapter 393, a guardian advocate may be appointed for a person with developmental disabilities if the person, even though competent, lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person, property, or estate, or if the person has voluntarily petitioned for the appointment of a guardian advocate. “Guardian advocate” means a person appointed by a written order of the court to represent a person with developmental disabilities under s. 393.12

When a Guardian Advocate May Be Appointed
F.S. 393.12(2)(a) allows the court to appoint a guardian advocate for a person with developmental disabilities, if the person, although competent, “lacks the decision making ability to do some, but not all, of the decision making tasks necessary to care for his or her person or property.” The statute also allows for the appointment of a guardian advocate when a person with developmental disabilities voluntarily petitions for the appointment of one. Once the guardian advocate is appointed, the advocate is then a “guardian” for all the purposes of F.S. Chapter 744 and must file the customary initial and annual reports and fulfill other customary guardianship requirements.

Definition Of Developmental Disability
“Developmental disability,” as used in F.S. Chapter 393, is defined as “a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.” The term “cerebral palsy” as used in the foregoing definition does not include symptoms resulting solely from strokes.

Educational Requirements After Appointment as a Guardian Advocate
A guardian, other than a parent who is guardian of the property of their minor child, is required to receive a minimum of eight (8) hours of instruction and training. A parent appointed guardian of the property of their minor child must receive a minimum of four (4) hours of instruction and training. In its discretion, the court may waive some of those.

Powers And Duties of the Guardian Advocate
The guardian advocate has all the same powers, duties, and responsibilities of a guardian appointed under F.S. Chapter 744 or such powers, duties, and responsibilities as are specifically set forth by the court in its order.

Legal Rights Retained By Person Under Disability
When a guardian advocate is appointed for a person with developmental disabilities, the person retains all legal rights except those that have been specifically granted to the guardian advocate.

After an initial consultation with the family, the attorney will prepare several documents for the guardian advocate to sign for filing with the court. These include: an Application to Serve as Guardian Advocate and a Petition for Appointment of Guardian Advocate, among others. A criminal background check may also be required for the proposed guardian advocate.

An attorney will also be appointed to serve as the court-appointed attorney for the developmentally disabled person. The function of the court-appointed attorney is to meet with the family and the developmentally disabled person and report to the court on whether or not they recommend the guardian advocacy.

Once all the necessary documents are in place, a hearing before the Judge will be required. All interested parties will attend the hearing. The Judge will issue an Order Appointing Guardian Advocate, Letters of Guardianship and will also decide on any other pending petitions or matters.

Within 60 days of appointment, guardians must file an Initial Plan and if necessary, a Verified Inventory. Annually, guardians will be required to file an Annual Plan and if necessary, an Annual Accounting. The guardianship will continue for the child’s lifetime.

THE LAW OFFICES OF HOYT & BRYAN, LLC
FAMILY WEALTH & LEGACY COUNSELLORS
MARGARET “PEGGY” R. HOYT, J.D., M.B.A. †*
RANDY C. BRYAN, J.D.† ‡
SARAH S. AUMILLER, J.D
†BOARD CERTIFIED IN WILLS, TRUSTS & ESTATES
‡BOARD CERTIFIED IN ELDER LAW
*CERTIFIED LEGACY ADVISOR™

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