Disability Resources by Category

Restoration of Rights

Guardianship and Guardian Advocacy are two legal ways that a person with a disability can lose their civil rights and have another person appointed to exercise them on their behalf. Under guardianship, a Guardian is appointed after a person is deemed incapacitated based in part on an evaluation done by three experts appointed by a court. Under Guardian Advocacy, a Guardian Advocate is appointed after a person is deemed to have a developmental disability and poor decision-making abilities.

The process for having a person’s rights restored is similar under the laws for guardianship and Guardian Advocacy. To initiate the process, both laws require someone to file a document with the court stating that the person can exercise some or all of the rights removed from them, a Suggestion of Capacity (guardianship) or a Suggestion of Restoration of Rights (Guardian Advocate). Both statutes require that the person under guardianship or a Guardian Advocacy be appointed an attorney to represent them in the proceeding.

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Restoration of Rights After a Determination of Incapacity

In Florida, an individual who was previously determined to be incapacitated, or another interested person, can ask the court to restore capacity so that the person can make willful and knowing decisions about their life. This is called a Suggestion of Capacity. Under Florida Statute §744.464, once a person files a Suggestion of Capacity with the court, the court will send a physician to examine the person under guardianship and make a recommendation to the court regarding capacity of the person under guardianship. The person under guardianship will be appointed an attorney if they do not already have one.

The court will also notify the Guardian about the Suggestion of Capacity. The Guardian has the option to object or disagree with the Suggestion of Capacity. If no objections are filed and the physician establishes that all or some of the person’s rights should be restored, the court will enter an order to restore the rights that were previously taken away in accordance with the physician’s findings.

If someone files an objection with the court, or if the physician finds that restoration to capacity is not appropriate for the person under guardianship, the case will move forward to a hearing. During the hearing, an attorney will represent the person under guardianship and the court will weigh all the evidence to determine if the Suggestion of Capacity should be denied or if the person’s rights can be restored.

Restoration of Rights After Guardian Advocacy

In Florida, the process for restoring the rights of a person under guardian advocacy is similar to that of restoring the rights of a person under limited or plenary guardianship. There is a difference because the person under guardian advocacy was never found to be incapacitated, so a finding of regained capacity is not needed. Instead of an evaluation by a court-appointed physician, the court relies on reports and other relevant information about the person’s abilities to decide if the person can exercise their rights and manage their own affairs. However, the law may allow a court to order an evaluation if the judge thinks it is needed. The document that is filed with the court to start the process is called a Suggestion of Restoration of Rights.

After the Suggestion of Restoration of Rights is filed, the court notifies all interested parties and appoints an attorney for the person under guardian advocacy if they do not already have one. If the Suggestion includes evidence, the judge will review the evidence to either immediately restore the rights requested or set a hearing. If the Suggestion does not have evidence, the judge wants more evidence, or someone objects to the restoration, a hearing must happen. After the hearing, the judge decides if the person under guardian advocacy can have some or all of their rights back.