A guardian advocate is a court-appointed individual that assists individuals with developmental disabilities or mental illness. Unlike a guardianship proceeding, the person with a developmental disability or mental illness is not declared incapacitated by the court. The purpose of a guardian advocate is to help those that can make some, but not all, decisions regarding their person or property.
It is important to note that a person with a disability can voluntarily petition the court for a guardian advocate, or a loved one, like a parent, can petition on their behalf. At a court proceeding for a guardian advocate, a judge will examine the records and decide what rights the guardian advocate may exercise on behalf of the person.
Some specific diagnoses meet the criteria for an appointment of a guardian advocate. Whether a guardian advocacy proceeding is appropriate can be determined by reviewing the legal standards with an attorney. Generally, guardian advocacy is appropriate for a person who has an intellectual disability diagnosed before the age of 18. During guardian advocacy proceedings, the court will select an attorney to represent the person with the disability if they cannot secure an attorney to protect their rights.
A guardian advocate is a qualified family member, caregiver, or friend who has the experience and capacity to meet the needs of the individual. A guardian advocate is responsible for filing annual plans, and reports with the court in areas the judge decides are appropriate.
This may include provisions for medical, mental health, dental and personal care of the person, residential decisions, and or financial decisions. Guardian advocates must attend instructions and education regarding their role from a court-approved organization.
What Is A Guardian Advocate For The Developmentally Disabled?
A guardian advocate is a special form of guardianship only available to mentally incapacitated persons deemed developmentally disabled. The legal authority to create this special relationship and representation is found in the Developmental Disabilities Act; refer to the local state laws for more guidance.
This option is generally less expensive, intrusive, and easier to implement. It is comparable to limited guardianship in its effect, and, most times, removing a person’s rights is unnecessary, even though they cannot exercise them without assistance.
Unlike traditional guardianship, where some, if not all, rights, responsibilities, and ability to make legal decisions are given over to the guardian completely, a guardian advocate for a developmentally disabled person is encouraged to be their client’s active participation in their decision-making process. The goal is to help preserve self-esteem and dignity by allowing them to decide on their property, financial, physical, and legal matters.
This relationship between a guardian advocate and a developmentally disabled person is meant to provide the ability for self-determination with a legal safety net still firmly in place to protect this person, as many experts in the field would state.
As a family member of these loved ones, you do not have to feel overwhelmed, stressed, or alone when figuring out the right balance between recognizing a loved one’s cognitive limits and respecting their awareness. It is crucial to seek professional guidance on these matters to determine future actions for your situation.
How Do I Initiate The Legal Process?
Keep in mind that guardianship is a court-created responsibility. For a guardian to be assigned, an “interested person” must file a petition in court. The petition includes basic information, such as the name, date of birth, and address of the person alleged to need guardianship. A report must also be filed, including a physician’s description of the person’s physical and mental capacity and their relevant evaluations, enabling the judge to determine the kind of guardianship required.
Generally, guardianship hearings are set within 30 days of a petition being filed with the court. The alleged disabled person, or respondent, must be served with a summons and a copy of the petition as in most cases. The respondent may be represented by an attorney, have a jury trial, present evidence, and cross-examine witnesses. Where appropriate, the court will select an attorney or layperson as the guardian ad litem.
The guardian ad litem acts as the “eyes and ears” of the court and advocates for the respondent’s best interest. Before the hearing, the guardian ad litem must interview the respondent, inform him of his rights, and investigate the appropriateness of guardianship. If the alleged disabled person opposes the opinions of the guardian ad litem or disputes the need for guardianship, the court may assign an attorney to represent the respondent.
Evidence about the respondent’s health, mental faculties, finances, housing, and lifestyle are presented at the hearing. The guardian ad litem reports to the court as to the condition of the respondent and may suggest the type of guardianship needed. The court then examines all the information presented, including the physician’s report, the testimony of witnesses, and the testimony of the guardian ad litem. Lastly, the court either enters a limited guardianship order or finds no guardianship warranted.
The selected guardian oversees a program to maximize the ward’s self-reliance and independence. Furthermore, the guardian may be required to submit an annual report to the court concerning the services provided to the ward and the status of the ward’s care. Additionally, the estate guardians must file inventories of the ward’s assets and periodic accounting of estate receipts and disbursements. Keep in mind that all estate expenditures are subject to court review, and the guardian may be held accountable for estate assets that are improperly managed.
If a change occurs in the guardianship, or if the annual report suggests that guardianship be adjusted or revoked entirely, a petition for modification or termination of guardianship can be filed. After carefully considering this, the judge may terminate the guardianship or modify the guardian’s duties. A court can appoint a successor guardian if a guardian is unwilling or unable to perform his duties.
Moreover, any party filing a petition for guardianship must pay the fees for filing, sheriff’s fees for the service of summons on the respondent, and attorneys fees. Although it is not mandated, attorneys usually represent petitioners, particularly in contested guardianship cases. In some situations, the petitioner may pay fees for the services of the guardian ad litem or the physician who prepares the medical report. If the alleged disabled person has funds, these may be utilized to pay the costs and fees.
It is important to note that guardianship can be costly and complicated. In many cases, alternatives to guardianship can and should be considered. Guardianship should be the last resort, a mechanism by which a person’s legal rights are taken away for a sound and necessary purpose.
When Do I Need to Contact a Lawyer?
If you are considering getting guardianship of any kind. It is recommended to seek out a local guardianship attorney for assistance. As mentioned earlier, guardianships can permanently alter life situations; therefore’ it is necessary to consider all legal options before making a decision.
A qualified family law attorney in your area can provide you with advice and guidance for your particular situation. They can also update you if there are any changes to the laws that could impact your legal rights and options.
