Our 'Exceptional' Guardian Advocacy Journey, Part 1

Our 'Exceptional' Guardian Advocacy Journey, Part 1

Author:  Scott G. Russell, CFP®

In this two part blog series, I relay my wife's and my experience in becoming Guardian Advocates for our daughter.  This is not intended to be a 'how to' guide by providing the exact forms, etc. but rather an overview of our experience from beginning to end.  For parents with children that will continue to need help into adulthood, hopefully our story will give you a better idea of what to expect on your own journey.

As many parents would probably say, when our children hit age milestones it is WAAAY more impactful to our psyche than when we hit our own milestones.  This can be especially true for parents with children that have exceptionalities.  As 'exceptional' parents we often tend to focus on the here and now.  We ask ourselves, what do we need to do today to move our children forward from wherever they are at along their own unique path of life?  Unlike parents of children with traditional paths, our vision of our child's future has probably changed from what we originally imagined and is often is still unclear.  It's easy to then mentally put off long-term planning.  However, time does not stand still waiting for us to have life figured out before those milestones hit.  

As 'exceptional' parents, the big milestones for us were; elementary school, puberty, being old enough to drive, and now….. becoming an adult.  An ADULT? Yes, the magical age (18 in the state of Florida) when our child can legally make their own decisions, like what medications they want to take, where they want to live, whether or not they want to attend school, and when and to whom they want to MARRY!!   I'll wait until you can refocus to continue………………………………………………

…………………………………OK, welcome back.  So, what actions do 'exceptional' parents need to take when our children are about to hit the big one, becoming an adult?  Besides the honest answer of freak out, we need to think about whether or not our child will continue to need us to help them out with decisions, both big and small.  Depending on the extent of our child's needs, our options moving forward range from doing nothing…. all the way to having full guardianship over them.  

How do we determine which option is best?  In some cases it's much easier to determine than others.  The use of objective testing like IQ tests will definitely help. Those should be included in your child's IEP, if applicable.  You can also gather feedback from teachers and other professionals your child works with. Ultimately, depending on what path you take, you might need a Dr.'s opinion and/or the court's help to decide.

Once we understand our child's needs, we then must to choose which direction to take.  Below are four of the more common ways to go:  (There's nothing special here that you can't find on the home page of the website of any Florida Law Practice but I tried to highlight the meaningful attributes to our situation.)

Do Nothing: Hopefully, someone would only consider this one because they believe their child has the mental capacity to make their own life decisions and NOT because they don't have knowledge to pursue the other alternatives.  Some might think that this 'wait and see' approach is best.  However, taking proactive action at the time the child reaches age of majority will more than likely be a MUCH easier process than waiting until there is a pattern of an inability of making proper decisions and then asking a court to allow you to act on their behalf after the fact…and just to be clear, I'm not talking about the dumb decisions we all make when we were young adults (I would insert some of my personal examples here but I might want to run for political office one day).  There is a big difference between understanding basic action/consequence concepts and not understanding them.  Sadly, I've heard multiple times that some salespeople do not care if it appears their prospective buyer does not understand the basic information they are relaying (like the general concept of the value of money and financing!) just whether or not the person will sign the contract. 

Power of Attorney:  A power of attorney is a legal document delegating authority from one person to another.  Certainly, this is a very viable option in some cases.  However, it's a bit tricky.  A Power of Attorney (POA), in this case probably a Durable Power of Attorney, is a legal document.  Therefore, it is a requirement that your son or daughter has the mental capacity to understand it prior to executing it, which leaves the possibility of it being contested if someone thought your son or daughter (otherwise known as the principal) did not understand what he/she was signing.  In addition, many financial institutions have their own policies/requirements surrounding POAs, which could make it difficult to use in some cases. It is much more difficult for them to decline a court order stating that you have the authority.   (Sorry to say but large financial institutions typically don't become, and remain, large by focusing all of their time and energy on making it as easy as possible for us to withdraw our money under all circumstances.  Having access to their assets in time of need is an area we focus on for our financial planning clients.)

Guardian Advocate:  A person that has obtained authority by the courts to make decisions on behalf of someone else that has a mental disability. This process falls under §393.12 of the Florida Statutes.  The nice thing with the Guardian Advocate process is that the court does not have to declare the person with a developmental disability incapacitated.  In addition, the annual reporting requirements are less onerous than that of a full guardianship and you don't necessarily need to have an attorney to do it.  That said, and economics aside, for some folks an attorney might make things a whole lot easier.  Inquiring into free legal services might be an option but to tell you the truth, I had trouble finding a free legal service to help with the Guardian Advocate process when we were going through it.

Full Guardian:  A person that has obtained authority by the courts to make decisions on behalf of someone else that has a mental disability.  Obviously, the end result is similar to the Guardian Advocate but the process falls under Chapter 744 of the Florida Statutes.  Again, with full guardianship, the court has to determine that the person (otherwise known as the 'ward') is incapacitated.  To make this determination, the court appoints a committee of three members.  The examination of the potentially incapacitated person normally includes: a physical examination, a mental health examination and a functional assessment.  Due to the complexity of the process, an attorney would be needed.  

For my wife, daughter, and me, being Guardian Advocates was the right option.  In part 2 of this blog series, I'll relay my experience in diving into the research of how to file to become a Guardian Advocate and finally, what our experience was like.

Scott G. Russell, CFP®

Concierge Financial Organization

3637 4th Street N., Suite 210

St. Petersburg, FL 33704

Phone: 813-374-9676

Fax: 813-374-9679
 

The information provided in this newsletter is educational in nature and is not intended to be construed as, legal, tax or investment advice and does not necessarily represent the views of the presenting party. Specific federal and state laws relevant to a particular situation may affect the applicability, accuracy or completeness of this information. Material presented is believed to be from reliable sources, but its accuracy is not guaranteed. If additional information is needed, the reader is advised to seek professional services. 

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