Removal of a Guardian Advocate
Certain developmental disabilities can make it difficult or even impossible for a person to properly manage all areas of their life. Often, when someone with a developmental disability — such as intellectual disability, spina bifida, autism, Down syndrome or cerebral palsy — turns 18, a guardian advocate is appointed to make decisions on their behalf. The developmentally disabled individual loses certain civil rights and the guardian advocate, usually a parent or family member, is given the authority and responsibility to exercise those civil rights for them.
A guardian advocate can have an incredible amount of influence over the personal, medical, or financial life of someone in an extremely vulnerable position. Guardian advocacy is a position of trust and responsibility, and the person with a developmental disability’s best interests must always be the priority. If certain values and standards are not met, Florida law allows for a guardian advocate to be removed from their position and relieved of their duties.
If you believe your guardian advocate, or the guardian advocate of someone you know, is unfit for their position or no longer desires to serve as the guardian advocate, contact CLSMF for legal advice.
WHAT ARE YOUR RIGHTS?
The position of guardian advocate was created solely for the benefit of the person with a developmental disability (their “ward”). Many regulations are in place to make sure that a guardian advocate is conducting their duties in a responsible manner that serves their ward’s best interests.
Florida Statute §744.474 defines the violations that would lead to a guardian advocate’s removal. The list includes, but is not limited to:
- If they committed fraud to get the position;
- Abuse of their power as guardian advocate;
- Incapacity or illness (including substance abuse) which leaves them unable to perform their duties;
- Embezzlement or mismanagement of the ward’s property;
- Improper management of the ward’s assets;
- Failure to return schedules of property sold or accounts of sale of property, or failure to produce the ward’s assets when required;
- Failure to comply with court-required bond or security, or evidence required by a guardianship plan to prove that the sureties on their bond are active and solvent;
- Failure to comply with a guardianship report;
- Failure to complete the guardianship educational requirements; and
- The development of a conflict of interest between the guardian advocate and the ward.
A guardian advocate may also be removed if, after they were appointed, they had a change in circumstances which would have made them ineligible to be a guardian advocate. Along with criminal behavior, disqualifications may include:
- If the guardian advocate provides substantial business services to the person with the developmental disability or acts as their creditor; and
- If the guardian is employed by a company that provides substantial business services to the person with the developmental disability or acts as their creditor (unless they are a parent, spouse, adult child, or sibling).
For the protection of those with developmental disabilities, guardian advocates may be removed as the result of criminal behavior.
Conviction of a felony is cause for removal, as is being found guilty of, or entering a plea of guilty or “nolo contendere” to, any of the offenses detailed in the Florida Statute for guardian background screening, §435.04. The long list of offenses includes, but is in no way limited to, the following:
- Sexual misconduct with the developmentally disabled or mental health patients;
- Abuse, neglect, or exploitation of aged or disabled adults;
- Assault, battery, or sexual abuse of a minor;
- Lewd behavior and indecent exposure;
- Drug offenses resulting in a felony or involving a minor;
- Kidnapping and false imprisonment; and
- Aggravated manslaughter of a child, elderly person, or disabled adult.
WHAT DO YOU NEED TO DO?
The court hearing will review evidence and pleadings to make a decision. Collect all available evidence and documentation that supports your assertion that the guardian advocate has violated the guidelines of behavior outlined by the state.
Guardian removal proceedings can be instituted by the court, by the person with the developmental disability, or by any other interested party. Ask the circuit court that appointed the guardian advocate how to begin removal proceedings.
The court will give reasonable notice to the guardian and set a hearing. The court will consider pleadings and evidence at the hearing and make a determination. (Florida Statute §744.477)
If the court orders them to be removed, the guardian advocate must submit a final report of their guardianship within 20 days after removal and provide copies to their successor and the person with the developmental disability. (Florida Statute §744.511)
Lastly, the removed guardian must provide their successor with all of the property and records of the person with the developmental disability or find themselves in contempt. (Florida Statute §744.514)
WHAT TO CONSIDER BEFORE TAKING ACTION?
The Florida Statutes outline the reasons for removing a guardian advocate in detail, but the summaries of the process for removal are short and vague. Seek guidance about the process and its details from the appropriate circuit court, or contact CLSMF for legal advice.