Below are answers to frequently asked questions about guardianship of individuals over the age of 18 with an intellectual or developmental disability (IDD). The information below is general, as each state has its own laws and procedures regarding guardianship over an adult.
What is Guardianship?
Guardianship revokes an individual’s right to make decisions pertaining to certain areas of their life; when the courts have found them unable to make sound decisions. In these instances, legal power is given to the guardian, who’s obligated to act in the best interest of their “ward.” Guardianship can be for personal matters, such as housing, healthcare, and other decisions affecting day-to-day life; it can also be for financial matters, making decisions related to money, benefits, property, and other assets. Guardianship can simultaneously be for both areas.
Who Can Be a Guardian?
Typically, parents are the preferred guardian, but adult siblings and other close relatives commonly serve as guardians too. Other people such as a close family friend may serve as a guardian if there’s no relative available. Courts can also appoint a professional guardian when necessary, and certain organizations may take on the role in some states. No matter the circumstances, the guardian must be appointed by the courts.
How Do You Become a Guardian?
Every state has its own process, but becoming a guardian requires petitioning for the power in court. It is granted upon the court’s finding that an individual is not competent to make certain essential decisions for themselves. To find forms and information about petitioning for guardianship in Florida, visit this page of FloridaCourts.org.
Should You File for Guardianship?
Sometimes the need for guardianship is clear, but not always. The decision comes down to whether your adult child is capable of consistently making sound decisions that affect their welfare and/or finances. Also, some individuals might easily be taken advantage of, so for these persons, guardianship can serve as an important layer of protection.
The decision to petition for guardianship should not be made lightly, as it strips a person of the freedom to make their own choices in many areas of their life. Opt for the lowest level of guardianship possible, or better yet, for a less extreme alternative when possible (See the next two frequently asked questions about guardianship).
Are There Different Types of Guardianship?
Yes. Each state has different levels of guardianship, and, as previously mentioned, there are separate types of guardianship for personal and financial matters. For information about different levels of guardianship in Florida, see this page on the Disability Rights Florida website.
Are There Alternatives to Guardianship?
Yes. Some other options besides guardianship:
- Regular family guidance can be adequate in many situations when loved ones are nearby.
- Special needs trusts are an option for holding and protecting assets of a person with an IDD.
- Various assistive or supportive living services and communities can be a good solution for people who primarily need help with daily tasks.
- Other more specific legal appointments, such as power of attorney, durable power of attorney, healthcare proxy, or financial representative may suffice for many individuals.
What Are the Responsibilities and Powers of a Guardian?
These will be specifically outlined by the court in each individual case. The designated responsibilities and powers will apply only to those areas of the ward’s life where the court has found they lack the capacity to make sound decisions. Sometimes, there are certain instances when the guardian must seek special permission from the court, like when a decision must be made about medical treatment in life-threatening circumstances, making a decision to sell the ward’s property and move them to a facility.
Are Guardians Supervised to Protect Their Wards?
Guardians are legally obligated to make decisions that are in the best interest of their ward. Anyone acting as a guardian is subject to supervision by the courts, which oversee to ensure that the ward’s finances aren’t being mishandled and that they’re not being taken advantage of. Usually, guardians are required to submit annual or semi-annual reports to the court to ensure that proper decisions are being made and that the ward’s needs are being met. Guardians may be subjected to sanctions or removed from the position at the court’s discretion.
What Happens When a Guardian Dies or Becomes Incapacitated?
The courts will appoint a new guardian. Guardians should name who they wish to become the next guardian in their will (and it’s a good idea to include one or two additional names in the event that the intended guardian is unable to fulfill the role).
