Florida Trust & Probate Attorneys Blog
Disabled Child Turning 18:
Legal Support for My Disabled Child
By Jacqueline R. Bowden Gold, Miami Estate Planning Attorney
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If your disabled child is about to turn 18 and is unable to continue managing their affairs, here is what you need to know:
The process is a two-step course of action that consists of (1) evaluating your disabled child’s capacity and, (2) the court appointing a legal guardian (with preference to parents who are qualified to serve).
(1) Incapacity Proceeding:
First, a petition to determine incapacity must be filed containing specific information regarding the alleged incapacitated adult. The petitioner must state the rights, similarly, mentioned in § 744.3215, Fla. Stat. (2022), which the incapacitated person is unable to exercise. The attorney representing the petitioner will not represent the rights of the alleged incapacitated adult. The court will appoint an attorney ad litem, to represent the alleged incapacitated adult. After the petition has been filed, the court has 5 days to assign an examining committee that will consist of three independent medical professionals to provide their expert opinions. This committee of examiners will be composed of one mandatory psychiatrist, or any other qualified physician, in addition of two other members. For additional information on who qualifies as a member of an examining committee refer to Fla. Stat. § 744.331 (3)(a). Furthermore, this committee must determine whether the individual can exercise the rights established in the petition. After the examination, each member of the committee must submit a report with the member’s evaluation of the alleged incapacitated individual no later than 15 days after being appointed. Following the examinations, the court will set a hearing. In the case that your disabled child is determined to be incapacitated, an order determining incapacity of your child will be signed by the judge.
(2) Appointment of Legal Guardian:
Once incapacity is determined, the next step is to appoint a guardian(s). A petition for the appointment of a guardian must be submitted containing specific statements pertaining to the alleged incapacitated person. Information regarding the guardian must be mentioned in the petition, with focus on the reason why he or she should be appointed as the guardian. Additional information regarding the guardian must include whether he or she is a professional guardian, and the relation to the alleged incapacitated individual—whether you are the mom or dad, and any other information crucial to be appointed as the legal guardian of your child. — Other required information that ought to be included in the petition can be found in Fla. Stat. § 744.334. The guardian can be appointed for the person or property, or both (referred to as the Plenary Guardian).
As the legal guardian of your child, you must take an oath to successfully perform the designated duties. Fla. Stat. § 744.36. You will also be required to complete an 8-hour educational course, Fla. Stat. §744.3145.
After being appointed as the legal guardian, you will be required to file an initial inventory within 60 days of your appointment, itemizing all the assets of your disabled child. You will also be required to file an initial guardianship plan that should include medical, welfare, residential, and other relevant care for your disabled child.
You will have continued responsibilities to comply with. Annually you will have to file an annual plan accompanied with a certificate from a licensed physician, and annual accounting—although the accountings could be waived if your disabled child only received Social Security Income.
Having all these documents organized is key to establishing that your disabled child is completely protected under Florida law, after turning 18. For more information, get in contact with Miami Lakes Guardianship attorney Jacqueline R. Bowden Gold.
Notes:
Once the individual is determined incapacitated by the court; those who are chosen to be appointed as guardians will be evaluated through fingerprints, background checks, and with the completion of an 8-hour course. Those individuals who have committed a felony, cannot become legal guardians.
This article is intended for informational purposes only. It is important you consult with an attorney. Rarick & Bowden Gold, P.A. can assist with a scheduled consultation by contacting our office at (305) 556-5209.