Guardianship The Basics After Regis Little Presented by: DADE LEGAL AID WENDY L. ROBBINS, ESQ. And KRISTEN FEUER, ESQ.
WHO WAS REGIS LITTLE? Regis Little never made it to Kindergarten when his Mother died of Cancer. She never married Regis’ Father and his Father was not around. From then on , Regis was shuffled between an elderly aunt and uncle, a half-sister and multiple group homes and locked mental health and juvenile facilities.
He lived for some time with a half-sister who died in 2012, at the age of 42, and another half-sister moved out of Florida. For almost a year at some part in his life, Regis Little was kept in an isolation cell. He was placed on at least five psychotropic medications and by his junior year in high school, which he never finished, he was still illiterate.
By the time he turned 18, Regis Little… • had been molested twice, the first time before he started kindergarten • been arrested 11 times • been shuffled between multiple group homes, family and locked facilities from 2000 to 2008 • hated being alone and in the dark • had an IQ of 65
was diagnosed bipolar, hyperactive and aggressive • left the system with $1000. 00 month disability check • Was left to fend for himself, with no one and nothing to assist him • and at 18 and 11 months, he was dead. •
THE TASKFORCE
PROGRESS
THE LAW F. S. 39. 6251
What may suggest a foster youth may benefit from a guardianship? A diagnosis of a developmental disability. Receiving SSI (Social Security Income) because of a developmental disability. Ø Receiving a full or mini-waiver for APD (Agency for Persons with Disabilities) services. Ø Receiving CMS (Children’s Medical Services) level Medicaid or in a MFC (Medical Foster Care) placement for a serious medical condition that impairs functioning. Ø Psychological assessments indicate a lower IQ score. Ø Ø
Ø A youth potentially in need for a guardianship should be identified as early as possible! Ø When they are 16. 5 years of age, start preparing all the documents required!
REGIS LITTLE ACT WHAT DOES IT REQUIRE?
PRIOR TO THE 17 YEAR OLD JR: UPDATED CASE PLAN WITH A FACE-TOFACE CONFERENCE WITH THE YOUTH, IF APPROPRIATE, AND ALL OTHER RELEVANT PERSONS – YOUTH’S ATTORNEY, GAL, TEMPORARY CUSTODIAN OF YOUTH AND PARENT IF NOT TPR’D
AT THE 17 YEAR OLD JR: 1 st A DETERMINATION BY THE COURT THAT A GUARDIANSHIP IS APPROPRIATE AND THERE ARE NO LESS RESTRICTIVE MEANS AVAILABLE TO MEET THE YOUTH’S NEEDS
17 YEAR OLD JR: 2 ND IF THE COURT DETERMINES THE YOUTH MAY NEED SOME SORT OF GUARDIANSHIP, THE DEPARTMENT SHALL…. . a. COMPLETE A MULTIDISCIPLINARY EVALUATION, WITH FULL SCALE IQ, THAT IS NOT OLDER THAN 2 YEARS PRIOR, AND INCLUDES. .
17 YEAR OLD JR A PSYCHOSOCIAL EVALUATION AND AN EDUCATIONAL REPORT b. THE DEPARTMENT SHALL IDENTIFY ONE OR MORE INDIVIDUALS WHO ARE WILLING TO SERVE AS GUARDIAN
A GUARDIANSHIP MAY BE INTIATED/FILED WITHIN 180 DAYS OF THE TH BIRTHDAY. YOUTH’S 17
What is a guardianship? Ø A legal proceeding Ø Where a guardian is appointed Ø To exercise the legal rights Ø Of a person who has been deemed incapacitated
Who or What is a guardian? Ø An individual Ø OR an institution (such as a professional or public guardian) Ø Who has been appointed by the court Ø To care for the incapacitated person (“ward”) Ø And/or for their assets Ø By exercising the rights specifically delegated to the Guardian
DISABILITIES WE ARE NOT THE EXPERTS BUT YOU HAVE THE MOST KNOWLEDGE ABOUT THESE YOUTH!
DO THEY HAVE AN INTELLECTUAL DISABILITY UNDER F. S. 393. 063 (9)? “Developmental disability” means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
F. S. 393. 069 (9) “Intellectual disability” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which manifests before the age of 18 and can reasonably be expected to continue indefinitely.
F. S. 393. 063 (9) For the purposes of this definition, the term: (a) “Adaptive behavior” means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.
F. S. 393. 063 (9) (b) “Significantly subaverage general intellectual functioning” means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the agency.
F. S. 393. 063 (3) “Autism” means a pervasive, neurologically based developmental disability of extended duration which causes severe learning, communication, and behavior disorders with age of onset during infancy or childhood. Individuals with autism exhibit impairment in reciprocal social interaction, impairment in verbal and nonverbal communication and imaginative ability, and a markedly restricted repertoire of activities and interests.
F. S. 393. 063 (4) “Cerebral palsy” means a group of disabling symptoms of extended duration which results from damage to the developing brain that may occur before, during, or after birth and that results in the loss or impairment of control over voluntary muscles. For the purposes of this definition, cerebral palsy does not include those symptoms or impairments resulting solely from a stroke.
F. S. 393. 063 (36) “Spina bifida” means, for purposes of this chapter, a person with a medical diagnosis of spina bifida cystica or myelomeningocele.
F. S. 393. 063 (25) “Prader-Willi syndrome” means an inherited condition typified by neonatal hypotonia with failure to thrive, hyperphagia or an excessive drive to eat which leads to obesity usually at 18 to 36 months of age, mild to moderate intellectual disability, hypogonadism, short stature, mild facial dysmorphism, and a characteristic neurobehavior.
ARE THEY INCAPACITATED ACCORDING TO F. S. 744. 102 (12)? “Incapacitated person” means a person who has been judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person.
F. S. 744. 102 (12) To “manage property” means to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.
F. S. 744. 102 (12) To “meet essential requirements for health or safety” means to take those actions necessary to provide the health care, food, shelter, clothing, personal hygiene, or other care without which serious and imminent physical injury or illness is more likely than not to occur.
How do I get a guardianship for someone I believe to be incapacitated? A detailed petition will have to be filed in the circuit court of Florida alleging a person is incapacitated. Ø Any competent adult may file a petition to determine another person’s capacity. Certain persons are excluded. Ø Must be filed in county where alleged incapacitated person (AIP) resides. Ø
How is a person determined to be incapacitated? Ø Ø After a petition is filed, the court appoints an examining committee of 3 members (usually physicians, mental health MDs or Ph. Ds) and an attorney for the AIP (often Regional Conflict Counsel) The members visit the AIP (contact info is key!), and submit their findings to the court at least 5 days prior to the hearing. Examination will include a physical exam, a mental health exam, and a functional assessment. Court appointed Counsel will also visit the AIP to inform them of the proceeding and receive their direction if the AIP is able to express it.
The “Legalities” Ø Ø Ø The Court will appoint an attorney to represent the AIP. Prior to the hearing the judge will review the examining committee’s reports and at the hearing listen to arguments of counsel for the Petitioner and counsel for the AIP. The Hearing is considered an adversarial proceeding. If the committee finds the AIP is not incapacitated, the petition will be dismissed. Judges follow the majority of the examining committee. If a judge finds the AIP can exercise some but not all rights, a limited guardianship will be found. If the person can exercise no rights, the guardianship is called plenary. The guardian is usually appointed at the end of the hearing. Letters and orders of guardianship will be issued.
What rights may be removed? Rights enumerated in Fl. Stat. 744. 3215 (2)(3): Marry Vote Personally apply for government benefits Have a driver’s license Travel Seek or retain employment Sue or be sued Contract Manage property or to make any gift or disposition of property Ø Consent to medical treatment Ø Make decisions about social environment or other social aspects of life Ø Ø Ø Ø Ø
ALL those rights are taken away? Ø They can be - This is called a plenary guardianship. Ø However, according to Fl. Stat. 744. 344 (2), a guardianship must be the least restrictive appropriate alternative. Ø A limited guardianship is when only certain rights are delegated to the guardian. The ward retains the rest.
WHO CAN BE A GUARDIAN? Any adult resident of Florida. Ø A non-resident of Florida if they are related by lineal consanguinity to the Ward; or a legally adopted child or adoptive parent of the ward; or a spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person. Ø The spouse of a person otherwise qualified under this section. Ø
WHO CAN BE A GUARDIAN? Biological and or adoptive family members, including biological parents, if their rights were not terminated, and adoptive parents, under limited circumstances. (written order by the Court finding that such appointment is in the child’s best interest) Ø Non-Profit agencies Ø Public Guardian Ø Professional Guardian Ø
WHO CANNOT BE A GUARDIAN Ø Persons convicted of a felony. Ø Persons who are incapable of carrying out guardian duties. Ø Persons who have been judicially determined to have committed abuse, abandonment, or neglect against a child as defined in F. S. 39. 01 or F. S. 984. 03 (1), (2), and (37). (Even with a case plan and reunification – they are excluded)
WHO CANNOT BE A GUARDIAN Ø Persons who have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under F. S 435. 04 or similar statute of another jurisdiction. Ø Anyone with a conflict of interest (ex. ALF owner). Ø The child’s attorney
What do guardians do? Ø Exercise those rights that have been removed from the ward and delegated to them. Ø This may include determining where they live, managing their finances, and making their medical decisions. Ø Will visit the ward at least once personally each calendar quarter.
Is a guardian accountable? YES! They are represented by an attorney who serves as the “attorney of record” throughout the guardianship. Ø They are usually required to furnish a bond and may be required to complete a court-approved training program. This is waived for public guardians. Ø If they do not carry out their responsibilities properly they may be removed or even charged with a crime (ex. Exploitation). Ø
How long does a guardianship last? Depends… If a person recovers in whole or in part from the condition that caused them to be incapacitated, they may be reexamined and may have all or some of their rights restored (ex. A stroke or severe accident). Many are lifelong, however. Ø Any interested person (including the ward) can file a Petition for Restoration. This involves re-examination by a court appointed doctor. Ø If a guardian has been appointed and the youth remains in care, at each subsequent JR the Court shall review at the permanency review hearing the necessity of continuing the guardianship and whether restoration of guardianship proceedings are needed when the young adult reaches 22 years of age. Ø
Ø Ø A guardianship may be terminated if the guardian fails to carry out their duties or becomes ineligible (ex. Becomes incapacitated or is deported). A successor guardian must be identified and appointed as soon as possible. A guardian may be discharged if unable to continue serving as guardian or if the ward is totally restored, by providing notice to the court with the court accepting the notice. If the Guardian is discharged and the ward is NOT fully restored, the Court must appoint a successor guardian. When a ward dies, the guardian is discharged with appropriate pleadings including filing the ward’s death certificate.
What items are needed to apply for a guardianship? Ø Some items that are normally requested for IL youth who are aging out: Proof of identity, including state ID, social security card, and birth certificate. Ø Immigration card or naturalization papers, if applicable. Ø Medicaid card or other proof of medical, or if not available, copy of Medicaid eligibility documentation. Ø
Additional items needed: A recent –within 2 years prior – Multidisciplinary psychosocial evaluation, complete with diagnoses and full scale IQ. Ø Any and all Final Orders from Dependency or Juvenile Court Ø Death certificates, or current contact information as to the biological and/or adoptive parents and other relatives of the youth. Ø Information pertaining to any assets (SSI trust fund, SSA, or other benefits coming from a deceased parent). Ø
What YOU can do Ø Ø Ø Consider if this youth would benefit from a guardianship and why. Recommend guardianship if it is in their best interest at the earliest possible point – preparing for a guardianship takes time! Review the recommendation annually. Have them evaluated once a year to keep everything current. Review what documents are needed and make sure everything is in order to be filed when they turn 18. There is a gap between filing a petition and having a guardian appointed. Make sure the youth has appropriate housing and assistance at 18. REMEMBER – the decision for guardianship is made by the Probate Court!
GUARDIAN ADVOCATES: A Less Restrictive Alternative Ø Ø Ø FS 393. 12 offers a less restrictive alternative for persons with specific disabilities. No finding of incapacity. Usually no attorney required, but there are pleadings, an examination, and a hearing. Limited to those with only intellectual disability, autism, spina bifida or Prader-Willi Syndrome manifesting before age 18. Guardian Advocate must meet Ch. 744 requirements. Major difference: No finding of incapacity, no annual accountings, no attorney. Not always the best solution for aging out FY who meet criteria.
ISSUES FINDING A GUARDIAN Ø THIS IS THE BIGGEST HURDLE. CHECK EVERYWHERE AND SCREEN EVERYONE WILLING. Ø YOU WILL NEED TO RUN CRIMINAL CHECKS AND DETERMINE THERE IS NO CONFLICT OF INTEREST FOR ALL PRIVATE GUARDIANS.
ISSUES ATTORNEY FOR THE GUARDIAN Ø A GUARDIAN MUST BE REPRESENTED BY AN ATTORNEY. Ø IF A PROFESSIONAL GUARDIAN OR PUBLIC GUARDIAN IS APPOINTED, THEY HAVE THEIR OWN ATTORNEY. Ø IF A PRIVATE PERSON IS TO BE APPOINTED GUARDIAN OF THE YOUTH – WHO WILL BE THE ATTORNEY FOR THE GUARDIAN? ?
ISSUES ATTORNEY FOR THE GUARDIAN Ø TRY AND GET A PRO BONO ATTORNEY TO STEP IN – KNOW IT WILL MOST LIKELY BE FOR THE LIFE OF THE YOUTH, SO IT IS A COMMITMENT. Ø THE REGIS LITTLE ACT ENCOURAGES PRO BONO INVOLVEMENT WITH THE GUARDIANSHIPS.
REMEMBER Ø NOT EVERY YOUTH WILL NEED A GUARDIAN. MANY PEOPLE LIVE WITH DEVELOPMENTAL AND PHYSICAL DISABILITIES AND DO NOT NEED A GUARDIAN. Ø THE MANDATORY MULTIDISCIPLINARY EVALUATION AND YOUR PERSONAL KNOWLEDGE OF THESE YOUTH WILL GIVE YOU THE INSIGHT YOU NEED TO HELP THEM.
THANK YOU! WENDY L. ROBBINS, ESQ. SENIOR SUPERVISING ATTORNEY DADE LEGAL AID wrobbins@Dade. Legal. Aid. org KRISTEN L. FEUER, ESQ. STAFF ATTORNEY DADE LEGAL AID kfeuer@Dade. Legal. Aid. org
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