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Guardian Advocate for Persons with a Developmental Disability

Guardian Advocacy is a process for families, caregivers, and friends of individuals with a developmental disability to obtain a guardianship without declaring the individual incompetent. Guardian Advocate appointments are governed by Florida Statute Section 393.12. The appointment of a Guardian Advocate allows the guardian to make decisions for the person with a developmental disability. Not everyone with a developmental disability needs a legal guardian. A circuit court may appoint a guardian advocate, without an adjudication of incapacity, for a person with developmental disabilities, if the person 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 or if the person has voluntarily petitioned for the appointment of a Guardian Advocate.  Often a Guardian Advocate needs to be appointed when a person with a developmental disability turns 18 years old. Upon becoming an adult, the parent no longer has the legal ability to make decision for them.  

To qualify under Florida Statutes, the person with a developmental disability must have a disorder or syndrome that is attributable to retardation, cerebral palsy, autism, spina bifida, or Prader‐Willi syndrome; that manifests before the age of 18; and constitutes a substantial handicap that can reasonably be expected to continue indefinitely.  

During any Guardian Advocate proceeding the Court will appoint an attorney for the person with a developmental disability to ensure their best interest is protected. The Guardian Advocate is responsible for only those duties approved by the Judge and listed in the Court Order. The process of becoming a Guardian Advocate of the person does not require the hiring of an attorney. If there is property involved, other than social security benefits or other government payee programs, the person seeking to become a Guardian Advocate of the person and the property must hire an attorney. These property rights include, but are not limited to a pending lawsuit, estate matter, or other income or property right coming to the person with a developmental disability.  

Florida Statute section 744.3135 allows the court to require a Guardian Advocate to submit, at their own expense, to an investigation of the Guardian Advocate’s credit history and to a level 2 background screening prior to being appointed to serve as Guardian Advocate. Online services offer credit history reports. The Guardian Advocate may be fingerprinted by any of the vendors approved by the Florida Department of Law Enforcement. A list of vendors can be found here. The background check and credit history investigation must be completed before a hearing for appointment as Guardian Advocate can be scheduled.  

The Step-by-Step Process Guide for Becoming a Guardian Advocate is available in our Self-Help Center located in the main courthouse at 3315 Tamiami Trail East and on our website at Collierclerk.com.  There are multiple documents that need to be filed including a petition and an oath.  The petitioner, or the person filing the paperwork will file the original paperwork including the background screening and credit history investigation with the Clerk’s Office. The Petitioner should attach a copy of the medical records of the person with a developmental disability to the Petition for Appointment of Guardian Advocate.  

The petitioner must pay the required filing fees that are currently set by Florida Statute at $235.00 for a Guardian Advocate of the person only. The filing fee for a Guardian Advocate of the person and property is $400.00. If the petitioner is indigent, he or she should complete an Application for Determination of Indigence, which is available at the Clerk’s Office. If the Clerk determines the petitioner is indigent, the filing fees may be waived.  

Once all necessary documents are filed and the case is entered, a case number and judge will be assigned to the case. You will be notified of a hearing date by the Magistrate’s office. You will attend with the person with a developmental disability if they are able to travel.  The Court will appoint an attorney to represent the person with a developmental disability.  

At the hearing, the facts of the petition will be presented to the Magistrate. The Magistrate will make a recommendation to the Judge and the Judge will decide whether to appoint a Guardian Advocate. The person with a developmental disability has the right to be present at the hearing. If the Judge decides the person with a developmental disability needs a Guardian Advocate, the Judge will enter an Order Appointing a Guardian Advocate and issue Letters of Guardian Advocate of the Person. The Order will contain the powers, duties, and responsibilities of the Guardian Advocate. The Guardian Advocate may obtain certified copies of the Order and Letters at the Clerk’s office for a fee. The person with a developmental disability retains all legal rights except those which the Court gives to the Guardian Advocate.

Florida Statutes require every person appointed as a Guardian Advocate to complete educational training. Once a person is appointed by the Court to be the Guardian Advocate, the required training must be completed within four months of his or her appointment. Each person appointed a Guardian Advocate must complete a minimum of eight (8) hours of instruction and training. If the guardian cannot afford to pay for the course, the guardian may file a motion to reduce or waive the cost of the course and an affidavit of indigence that reflects the guardian’s finances. After viewing the course, the guardian shall file the certificate of completion with the Clerk. 

After appointment, Guardians are required to file certain periodic reports with the Court. Failure to comply with any of the reporting requirements may require appearance before the Court, and removal or other actions may be taken against the Guardian Advocate. An Initial Plan must be filed within 60 days of appointment as Guardian Advocate. An Annual Plan must be filed within 90 days from the anniversary date of appointment as Guardian Advocate.  More information and forms can be obtained at the Clerk’s Office. 

Download the full June 2024 Newsletter here.