Disability Resources by Category

An adult who has capacity may select a person to serve as their Guardian in the event they become incapacitated in the future. The individual must express this decision in writing and sign it in the presence of at least two attesting witnesses present at the same time. The individual may file it with the court. If the individual is later found incapacitated and produces the declaration, the court should appoint the Preneed Guardian, so long as the Preneed Guardian is qualified.

When an individual has capacity but needs assistance with handling self-care and the management of their property due to age or physical condition, that individual can ask the court to be placed into a Voluntary Guardianship. Under a Voluntary Guardianship, the court will appoint a Guardian to manage some or all of the property of the person under Voluntary Guardianship. A licensed physician must specify that they have examined the individual and the individual is able to understand the nature of the guardianship. A Voluntary Guardianship may be terminated at any time by the person under Voluntary Guardianship. The person under Voluntary Guardianship may do this by filing a notice with the court expressing their decision to be released from the Voluntary Guardianship.

When a court is in the process of deciding if an individual is incapacitated, there are specific instances when an Emergency Temporary Guardianship is needed. The court will place the individual in an Emergency Temporary Guardianship if they believe the individual may be in immediate danger or if the individual’s property is at risk of being wasted, misappropriated, or lost unless immediate action is taken. There must be specific findings of this type of danger. The court will also specifically list the duties of the Emergency Temporary Guardian in a written order. This type of guardianship has time limitations before it expires.

A court of law may place an individual in a Limited Guardianship when it finds that the individual is only partially incapacitated. To be partially incapacitated means that an individual can make some, but not all, of the decisions necessary to care for their self and/or property. Under a Limited Guardianship, the person under guardianship loses some but not all of their rights, meaning the Guardian only has the authority to take the specific actions that are decided by the court. The person under guardianship will keep all of the rights that are not specifically taken away in the court order.

A person who has a developmental disability can be placed in a guardianship under a Guardian Advocate even when a court has not determined the individual to be incapacitated. A person is considered to have a developmental disability if they have been diagnosed with an intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome. Only the specific rights in which a person cannot manage are removed. The court may look at the individual’s support plan, their Individual Education Plan, and/or other supporting documents to determine the level of disability and need for assistance. The common areas in which Guardian Advocates assist individuals include:

• Giving informed consent for medical procedures and mental health treatment;
• Managing money and/or property;
• Applying for governmental benefits or entitlements; and
• Deciding on residential choices.

While some people think of Guardian Advocacy as less restrictive, because the person under Guardian Advocacy must retain at least one right, they can be just as restrictive as a traditional guardianship. 

Florida law requires Guardians and Guardian Advocates to consider the wishes of the person under guardianship or guardian advocacy and allow the person to participate in decisions affecting their life. Furthermore, Florida law places a duty upon Guardians and Guardian Advocates to notify the court if the Guardian believes the person under guardianship or guardian advocacy has regained capacity and/or if one or more of the rights that have been removed should be restored to them.

The administrator of a facility may petition the court for the appointment of a Guardian Advocate upon the opinion of a psychiatrist that a patient receiving mental health treatment is incompetent to consent to treatment. If the court finds the patient is incompetent to consent to treatment and does not already have a guardian in place with the authority to consent to mental health treatment, the court will appoint a Guardian Advocate. A person who is appointed as a Guardian Advocate must agree to the appointment.

When selecting a Guardian Advocate, the court will give preference to a Health Care Surrogate, if one has already been designated by the patient. If the patient has not previously selected a Health Care Surrogate, the court will select a Guardian Advocate from the list of individuals below (in order) unless reason is given as to why the individuals would not serve as a Guardian Advocate:

1. The patient’s spouse;
2. An adult child of the patient;
3. A parent of the patient;
4. The next closest adult family member of the patient;
5. An adult friend of the patient; or
6. An adult trained and willing to serve as Guardian Advocate for the patient.

The following persons cannot be appointed as a patient’s Guardian Advocate:

• A professional providing clinical services to the patient in the facility;
• The licensed professional who initiated the involuntary examination of the patient;
• An employee, an administrator, or a board member of the facility providing the examination of the patient;
• An employee, an administrator, or a board member of a treatment facility providing treatment of the patient;
• A person providing any substantial professional services, excluding public and professional guardians, to the patient, including clinical services;
• A creditor of the patient;
• A person subject to an injunction for protection against domestic violence, whether the order of injunction is temporary or final, and for which the patient was the petitioner; or
• A person subject to an injunction for protection against repeat violence, stalking, sexual violence, or dating violence, whether the order of injunction is temporary or final, and for which the patient was the petitioner.

The requesting facility must provide sufficient information so the Guardian Advocate can decide whether to give express and informed consent to the treatment, including information that the treatment is essential to the care of the person under mental health guardian advocacy, and that the treatment does not present an unreasonable risk of serious, hazardous, or irreversible side effects. Before giving consent to treatment, the Guardian Advocate must meet and talk with the patient and the patient’s physician in person, if at all possible, and by telephone, if not.

If a Guardian with the authority to consent to medical treatment has not already been appointed or if the patient has not already designated a Health Care Surrogate, the court may authorize the Guardian Advocate to consent to medical treatment, as well as mental health treatment, and will have the same abilities to make healthcare decisions as a Health Care Proxy. Health Care Proxies are appointed to make decisions for people who are deemed incapacitated when the person did not designate a Health Care Surrogate or write an advance directive. The Guardian Advocate cannot consent to the following procedures unless they have received express court approval:

• Abortion;
• Sterilization;
• Electroconvulsive treatment;
• Psychosurgery; or
• Experimental treatments.

The Guardian Advocate will be discharged when the person under mental health guardian advocacy is discharged from an order for involuntary outpatient placement or involuntary inpatient placement or when the person under mental health guardian advocacy is transferred from involuntary to voluntary status. During an involuntary placement, upon sufficient evidence, the court may restore, or the hearing officer may recommend that the court restore, the person’s competence. 

When the court finds an individual is unable to perform all of the tasks necessary to care for their person or property, the court will rule that the individual is totally incapacitated. The person is then placed under what is known as a Full or Plenary Guardianship. This is the most restrictive type of guardianship and few people require this type of guardianship. 

When an individual is placed in a guardianship, the Guardian can make the following decisions for the person under guardianship:

• To enter into contracts;
• To sue and defend lawsuits;
• To apply for government benefits;
• To manage property;
• To decide where the person under guardianship will live;
• To agree to medical and mental health treatment; and
• To make decisions about social environment or other aspects of life, including who they can talk to and visit.

When an individual is placed in a guardianship, they may lose the following rights and their Guardian can control their ability to do related activities, but these rights cannot be given to the Guardian to do for the person under guardianship:

• To marry;
• To vote;
• To personally apply for government benefits;
• To have a driver’s license;
• To travel; and
• To seek or retain employment.

There are some rights that may never be taken away, even if an individual is placed in a guardianship. A person that is placed in a guardianship will keep the following rights:

• To have an annual review of the guardianship report and plan;
• To have continuing review of the need for restriction of rights;
• To have rights restored at the earliest possible time;
• To be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation;
• To have a qualified Guardian;
• To remain as independent as possible, including having reasonable preference as to place and standard of living honored;
• To be properly educated;
• To have their property managed in a responsible way, and to be informed about how their property is managed;
• To receive services and rehabilitation necessary to maximize quality of life;
• To be free of discrimination related to their incapacity;
• To have access to the courts; and
• To be represented by an attorney.

The Guardian cannot make the following decisions unless the court specifically allows it:

• Commit the person under guardianship to a facility, institution, or licensed service provider without going through formal placement proceedings;
• Consent to experimental biomedical or behavioral procedures;
• Petition to dissolve the marriage of the person under guardianship;
• Consent to termination of parental rights of the person under guardianship; or
• Consent to a procedure for sterilization or abortion.