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Rights Restoration for the Developmentally Disabled

Last Modified: 10/29/2020

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, autism, spina bifida, 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. 

Florida law provides developmentally disabled people the opportunity to regain their lost civil rights under certain circumstances. If their capacity to properly make decisions in certain areas of their life has improved, perhaps due to medications or treatment, or professional evaluations provide new insight into their capability, they may petition the court to get those rights back by a process defined in Florida Statute §393.12.

If you or someone you know is developmentally disabled and believes they unfairly lack access to their civil rights, contact CLSMF for legal advice.

WHAT ARE YOUR RIGHTS?

The developmentally disabled only lose the rights that the court determined they lacked the “capacity” to properly exercise in the guardian advocacy proceedings. 

The exact areas in which the person lacks ability to make decisions about care and treatment services or basic requirements for their physical health and safety will be listed in the court order and the Letters of Guardian Advocate.

The exact terms of guardian advocacy do not have to be permanent. They are put in place to help a developmentally disabled person manage complex areas of their life, and they are designed to be altered if they no longer serve in that person’s best interests.

The developmentally disabled person, or any interested party, may file a Suggestion of Restoration of Rights with the court to try and have some or all rights given back to the developmentally disabled person.

WHAT DO YOU NEED TO DO?

You will be asked to provide evidence to support your claim when you file your Suggestion of Restoration of Rights. Collect all the documentation you can think of which shows that the person with a developmental disability has the capacity to exercise their rights on their own. Evidence can include, but is not limited to, signed statements from medical, psychological, or psychiatric practitioners who evaluated the person with a developmental disability.

This document is meant to show the court that the person with the disability currently has the ability to take over some of the decisions and rights that were given to the guardian advocate. File a Suggestion of Restoration of Rights with the circuit court that appointed the guardian advocate.

  • The Suggestion for Restoration of Rights must explain which rights should be returned and provide evidence to support this claim. Evidence may include, but is not limited to, a signed statement from a medical, psychological, or psychiatric practitioner who evaluated the person with a developmental disability which supports the case for restoration.
  • If the petitioner can’t get access to such evidence, they can state a good faith basis without attaching evidence to support it. The court will set a hearing to ask the petitioner and guardian advocate why evidence was not included, and then ask for the supporting evidence and documentation needed to make an informed decision. 

The court will appoint an attorney to the person with the developmental disability within 3 days of the filing date of the Suggestion document. The person has the option of substituting his or her own attorney for the court-appointed one. The person with a developmental disability’s attorney can not be serving as their guardian advocate or be representing their guardian advocate.

The clerk of court will send a Notice that the Suggestion of Restoration of Rights has been filed to the person with the developmental disability, the guardian advocate, both of their attorneys, and any other person involved in the court filings, such as an interested family member.

If any interested party objects to the Restoration, they must file official “Objections to the Suggestion” with the court within 20 days after receiving notice. If any objections are filed or the evidence in the suggestion is not enough for the court to approve the restoration of rights, the court will set a hearing. 

  • The hearing will involve all reports and testimony that relates to the person with the developmental disability’s decision-making capacity.
  • Notice of the hearing and copies of the objections will be sent to the person with the developmental disability, the guardian advocate, both of their attorneys, the person with the disability’s next of kin, and any other interested party.

 

The court will consider the Suggestion document’s evidence for restoration and all objections that were filed and determine whether or not to issue an Order of Restoration of Rights. 

  • They may issue an order to deny the entire Suggestion document (restoring no rights to the person with the disability), or they may decide to give back some or all of the rights requested by the person with the disability. 

If the court decides to restore only some of the rights previously assigned to a guardian advocate, it will issue amended letters of guardian advocacy and the guardian advocate must file an amended annual plan. If all rights were restored, the guardian advocate must file a final accounting with the court. The guardian advocate must file the amended annual plan or final accounting within 60 days after the Restoration order is issued.

WHAT TO CONSIDER BEFORE TAKING ACTION?

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