Developing Abilities and Restoring Rights Acknowledgements

Developing

Abilities and Restoring Rights

A Manual For

Legal Professionals

(Part of the Developing Abilities and Restoring Rights Series)

This document was commissioned, funded and sponsored by the Florida Developmental Disabilities

Council, Inc., and produced through funding provided by the U.S. Department of Health and Human

Services, Administration for Intellectual and Developmental Disabilities.

This Manual is designed to provide accurate and timely information in regard to the subject matter

covered. It is intended to be used for educational purposes and should be used with the

understanding that no legal advice is intended, implied or provided. The services of a competent

professional should be obtained if legal advice or other expert assistance is required. This Manual

includes general language from publications copyrighted by the Florida Developmental Disabilities

Council, Inc.(FDDC). FDDC’s resources and publications can be found at www.fddc.org.

Acknowledgements

Thank you to the following contributors who provided expertise, administrative and

financial support to the review and development of the Developing Abilities and

Restoring Rights publications:

PROJECT TEAM

Karen Campbell, Esq.

Executive Director

Office of Public Guardian, Inc.

Tallahassee, Florida

Melinda Coulter

Chairperson, Foundation for Indigent Guardianship

Family Guardian

Tallahassee, Florida

Fely Curva, Ph.D.

Sande Milton, Ph.D.

Curva and Associates, LLC

Tallahassee, Florida

Susan Dunbar

Parent Advocate

Tallahassee, Florida

Bruce Menchetti, Ph.D.

Formerly of College of Education

Florida State University

Tallahassee, Florida

Amelia Milton

Statewide Public Guardianship Office

Tallahassee, Florida

ADVISORY COMMITTEE MEMBERS

Tina Campanella

Executive Director, Quality Trust

Washington, DC

Jenica Cassidy, Esq.

Alisa Kobrinetz Chernack, LLC

Ellicott City, Maryland

Erika Dine, Esq.

Dine Law, P.L.

Sarasota, Florida

The Honorable Kristin Booth Glen

Dean Emerita, CUNY School of Law

Long Island City, New York

Antonina Gregory

FDLRS Gulfcoast Resource Teacher

New Port Richey, Florida

Steven E. Hitchcock, Esq.

Hitchcock Law Group

Clearwater, Florida

Victoria Heuler, B.S.C.

Heuler-Wakeman Law Group

Tallahassee, Florida

Pamela London

Agency for Persons with Disabilities

Tallahassee, Florida

Pamela Martini, Esq.

Law Office of Pamela G. Martini, PLLC

Orlando, Florida

Casey O’Halloran

Self-advocate

North Ft. Myers, Florida

Twyla Sketchley, B.C.S.

Sketchley Law Firm

Tallahassee, Florida

The Honorable Don Sirmons

Retired Circuit Court Judge

Judicial Circuit

Lynn Haven, Florida

Wynter Solomon-Cuthbert

Court Program Specialist – Guardianship

9th Judicial Circuit Court of Florida

Orlando, Florida

Anne Swerlick, Esq.

Deputy Director

Florida Legal Services

Tallahassee, Florida

Erica Wood

Assistant Director

ABA Commission on Law and Aging

Washington, D.C.

Preface

The Florida Developmental Disabilities Council (FDDC) is a non-profit organization that receives

federal assistance from the Department of Health and Human Services Administration on Intellectual

and Developmental Disabilities. The federal law that created the FDDC states that the purpose of the

FDDC is to assure that individuals with developmental disabilities and their families participate in the

design of and have access to needed community services, individualized supports, and other forms of

assistance that promote self-determination, independence, productivity, and integration and inclusion

in all facets of community life, through culturally competent programs authorized under this title.

To fully support people to lead the lives they are entitled to live, the FDDC recognizes the need to

raise awareness of ways to build abilities among persons with disabilities in the area of legal rights

particularly those who are under guardianship or guardian advocacy. The FDDC strongly believes

that numerous legal options and tools exist in Florida law to assist persons with disabilities to live and

work as independently as possible within their communities.

This manual seeks to provide the legal community and professionals working in the area of

guardianship with tools to better represent the interests of persons with developmental disabilities by

enhancing the person’s independence, productivity, inclusion and exercise of self-determination in all

facets of community life based upon such authorities as federal and state statutes, applicable case

citations, Florida Administrative Codes, Florida Probate Codes, and Rules of Professional Conduct.

Table of Contents

Section One – Introduction

A. Overview of Materials

B. Overview of Disabilities

1. Developmental Disabilities

2. Age-Related Disabilities

3. Mental Health Conditions

4. Acquired Disabilities

C. Common Misconceptions Surrounding Disabilities

D. The Dignity of Risk

Section Two – Options and Strategies

A. Civil Rights

B. Less-Restrictive Alternatives to Guardianship

1. Supported Decision-Making

2. Banking Services/Money Management

3. Representative Payee

4. Powers of Attorney

5. Health Care Advance Directives

6. Trusts

C. Strategies to Avoid, Limit, or Replace Plenary Guardianship

1. Alternative Dispute Resolution

2. Progressive Rights Restoration Plan

3. Limited Guardianship

4. Guardian Advocacy

Section Three – Restoring Rights

A. Guardianship and Guardian Advocacy Restoration Processes

B. Florida Case Law

C. National Case Law

D. General Barriers to Restoration

1. Lack of Access to Counsel of Choice

2. Lack of Awareness of the Right to Restoration

3. Lack of Established Systems Dedicated to Providing Support to Individuals Who Have Some

or All Rights Restored

4. National Perspective on Barriers in the Judicial Process

Section Four – Best Practices for Guardianship Professionals

A. Attorneys

1. Right to Counsel

2. Attorney Client Relationship with a Person under Guardianship

3. Accommodations

4. Working with Interested Persons

5. Evaluating the Case for Restoration

6. Hearing Preparation

7. Strategies at Hearing

B. Judges

1. Suggestion of Capacity

2. Appointment of Physician Examiner

3. Additional Considerations

4. Orders

C. Guardians

D. Physician Examiners

1. Role

2. Functional Assessment Evaluations

3. Tools and Instruments

Section Five – Conclusion

Section Six – Appendix

A. Progressive Rights Restoration Plan

B. Progressive Rights Restoration Plan (Example)

C. Restoration of Rights Chart for Guardian Advocacy and Guardianship

Section One: Introduction

Persons with disabilities may be placed under guardianship

because someone believed they were

incapable of safeguarding their own health and well-being. However, there are people who resist the

imposition of guardianship and want to be in control of their own lives. Therefore, legal practitioners

need to be equipped and prepared to assist persons who want more involvement in decision-making.

Developing Abilities and Restoring Rights: A Manual for Legal Professionals is a manual designed for

professionals involved in the guardianship process, specifically, attorneys, judges, examiners and

guardians. This manual is part of an educational initiative sponsored by the Florida Developmental

Disabilities Council

and the Guardian Trust.

Three publications comprise the Developing Abilities

and Restoring Rights series:

1. Developing Abilities and Restoring Rights: A Workbook for Persons with Disabilities

2. Developing Abilities and Restoring Rights: A Guide for Supporting Persons with Disabilities

3. Developing Abilities and Restoring Rights: A Manual for Legal Professionals

The objective of the series is to develop abilities and build independence among people with

disabilities, particularly those who are under guardianship and who may want some or all of their

rights restored. Guardianship professionals using this manual are encouraged to also read the

accompanying Workbook and Guide to increase awareness and a broader understanding of the

activities and strategies available to individuals seeking greater independence. Although these

materials are designed specifically to address the needs of persons with developmental disabilities,

the materials will also be useful in working with persons with age-related or acquired disabilities.

The purpose of the legal manual is to give guardianship professionals practice aids to equip them in

assisting persons under guardianship seeking to have their legal rights restored. Guardianship

professionals play a vital role in safeguarding the due process protections afforded by Florida law.

Guardians are required to help build capacities and bring potential restoration cases to the attention

of the court. Attorneys and guardians bring potential alternatives to guardianship and restoration

cases to the attention of the judge. Physicians examine the persons seeking restoration and make

recommendations to the court. Judges evaluate evidence according to law and ultimately decide

whether a person’s rights can be restored.

This manual includes:

an overview of disabilities and civil rights relevant to guardianship;

strategies to avoid, limit or replace a plenary guardianship;

a review of the restoration of rights process, barriers to restoration, restoration case law; and

best practices for participants in the restoration process. For example:





Attorneys interested in representing people with disabilities will find a

discussion of how to evaluate the case; work with the person under

guardianship and other interested persons; and, strategies on how to

evaluate and present a strong case for restoration.





Judges will find a review of the legal requirements involved in restoration

proceedings and a discussion of potential sources of evidence to aid in ruling

on restoration issues.





Guardians will find a discussion of their statutory responsibility to assist the

person under guardianship in regaining capacity.





Examiners (physicians) appointed to evaluate the individual will find a

discussion of their role in the restoration process and a brief discussion of

potential tools to assess capacity.

This manual will also raise awareness among guardianship professionals of the need to support

building independence and developing abilities for persons with disabilities. This effort to raise

awareness stems from a national movement encouraging the principles of supported decision-

making, personal autonomy, and self-determination.

In the 2014 Restoration of Capacity Study and Work Group Report funded by the Florida

Developmental Disabilities Council and Guardian Trust, it was reported that:

The increased focus on “supported decision-making” as opposed to “surrogate decision-

making” is perhaps the most significant development that will impact people currently in

guardianship as well as those who may be able to avoid guardianships that would have

otherwise been inevitable. …A groundswell of support has occurred for examining

guardianship from a human rights perspective. The Third National Guardianship Summit held

in Utah in 2011, like the two previous summits before it, generated many ideas for

improvements in guardianship theory and in practice. The topics covered included an overview

of status of and need for standards in guardianship, surrogate decision-making, the need for

person-centered planning, specific discussions of various areas of guardianship decision-

making, and increased monitoring. While not legally binding, many of these ideas were

subsequently incorporated into the National Guardianship Association Standards of Practice.

These standards emphasize the need to include the individual under guardianship in decision-

making and engage in person-centered planning at every opportunity. Additionally, the

standards establish that the guardian has a responsibility (standards which mirror what is

already in Chapter 744, Fla. Stat., Florida’s guardianship statute) to facilitate the individual’s

gaining or regaining functional capacity and his or her ability to seek restoration.

Florida’s disability advocates are part of this national trend as demonstrated by the research study

commissioned by Florida Developmental Disabilities Council and Guardian Trust which collected

guardianship and restoration data to determine the need for assistance with restoration among

persons with development disabilities under guardianship. The research findings revealed that

guardians and people under guardianship are not specifically aware of the right to a continuous

review of the need for guardianship nor are they aware of the legal process to obtain rights

restoration. The results of the study demonstrate the need to raise awareness about the availability of

restoration under Florida law and the need to develop practical tools and strategies to support

restoration activity.

The Quality Trust for Individuals with Disabilities launched the “Jenny Hatch

Justice Project” in 2013. The Quality Trust provided legal representation to Jenny

Hatch, a 29-year old woman with Down syndrome living in Virginia, who fought to

have guardianship lifted so she could live where and how she wanted. The case

brought national attention to the issue of people with developmental disabilities

having their rights restricted under guardianship. Also, it has brought together

national leaders and scholars on guardianship reform to develop new paradigms

that would replace guardianship with more person-centered models based on the

principles of self-determination.

It is important to understand some of the unique characteristics of four general types of disabilities:

developmental disabilities, age-related disabilities, acquired disabilities and mental health conditions.

1. Developmental Disabilities

Federal and state laws defining disabilities vary significantly. For federal purposes, a developmental

disability may be any significant physical or mental impairment that occurs before the age of twenty-

two. In Florida, a developmental disability is defined as one of five disorders or syndromes:

intellectual disability, cerebral palsy, autism, spina bifida or Prader-Willi syndrome. The disorder must

manifest before the age of 18 and constitutes a substantial handicap that can reasonably be expected

to continue indefinitely.

General descriptions of Florida’s five developmental disabilities are:

a. Intellectual Disability. An intellectual disability is characterized by significant limitations in both

intellectual functioning and in adaptive behavior, which covers many everyday social and

practical skills. One way to measure intellectual functioning is with an IQ test. Generally

speaking, an IQ score of 70 or below indicates a limitation in intellectual functioning. Adaptive

behavior is the collection of conceptual, social and practical skills that are learned and

performed by people in their everyday lives.

Conceptual skills - language and literacy; money, time, and number concepts; and self-

direction.

Social skills - interpersonal skills, social responsibility, self-esteem, gullibility, naiveté (i.e.,

wariness), social problem solving, and the ability to follow rules/obey laws and to avoid

being victimized.

Practical skills - activities of daily living (personal care), occupational skills, healthcare,

travel/transportation, schedules/routines, safety, use of money, use of the telephone.

People with an intellectual disability may have other disabilities as well. Examples of these co-

existing conditions may include other developmental disabilities, seizure disorders, vision

impairment, hearing loss, and attention-deficit/hyperactivity disorder (ADHD).

b. Cerebral Palsy. Cerebral Palsy is characterized by 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. Potential

sources of brain damage after birth could be a head injury resulting from an accident, fall, brain

infection or child abuse.

Each person with cerebral palsy has different kinds of abilities and challenges. The effect of

cerebral palsy on functional abilities varies greatly. Some people are able to walk while others

are not. Some people show normal to near normal intellectual function, but others may have

intellectual disabilities. Epilepsy, blindness or deafness also may be present. Persons with

cerebral palsy may exhibit the following characteristics:

awkward or involuntary movements,

poor balance,

unusual walk,

poor motor coordination, and

speech difficulties.

c. Autism. Autism is more commonly referred to as “Autism Spectrum Disorder” (ASD), a

developmental disability that can cause significant social, communication and behavioral

challenges. Autism Spectrum Disorder is characterized by several conditions that used to be

diagnosed separately: autistic disorder, pervasive developmental disorder not otherwise

specified (PDD-NOS) and Asperger syndrome.

There is often nothing about how people with ASD look that sets them apart from other people,

but people with ASD may communicate, interact, behave, and learn in ways that are different

from most other people. The learning, thinking, and problem-solving abilities of people with

ASD can range from gifted to severely-challenged. Some people with ASD need a lot of help in

their daily lives; others need less.

Characteristics of autism may include:

avoidance of or not paying attention to others,

difficulty relating to other people,

difficulty communicating,

repetitive behavior,

possible reduction in intelligence, and

behavior problems that include resistance to change and emotional responses.

People with autism may have sensitivity to stimulation of their senses (touch, taste, hearing,

and sight). They can be overwhelmed by ordinary sights, sounds, smells and touches. The

symptoms vary greatly, ranging from a very limited disability to the lack of ability to speak or

live independently.

d. Spina Bifida. Spina Bifida literally means “split spine” and is defined as a condition of the skin,

spinal column, and spinal cord, in which the spinal cord fails to close. The causes are not

known, but women who take folic acid before and during pregnancy have dramatically

decreased the risk of having a child with spina bifida (but that does not always prevent the

disorder). Additionally, legal professionals should be aware that children of Vietnam veterans

who have spina bifida may be eligible to receive a special benefit under the Agent Orange

Benefits Act.

Spina bifida does not get worse over time; however, secondary problems can worsen and

require intensive management. Some of the health problems for people with spina bifida may

include:

not having a sense of touch or pain in the legs,

paralysis of bladder or bowels that interferes with the control of bodily functions,

possible curvature of the spine,

pressure sores,

hydrocephalus, and

“club foot.”

The extent of these problems varies with the location of the defect along the spine and the

effectiveness of early medical intervention. Some people with spina bifida have relatively few

of the problems listed above. Others require on-going medical care in one or more specialized

areas. Finally, although many people with spina bifida have average intelligence, there are

some learning disabilities and cognitive impairments that can be associated with

hydrocephalus.

e. Prader-Willi Syndrome. Prader-Willi Syndrome also known as PWS, is a complex genetic

disorder. It is usually associated with failure to thrive or an excessive drive to eat. Although

children and infants with Prader-Willi syndrome have similar features and symptoms, no one

characteristic is specific to the disorder. The disorder can lead to obesity, hypogonadism, short

stature or mild facial dysmorphism. Most people with PWS also have some degree of

intellectual disability. Some cognitive difficulties are usually present even when intelligence is

at normal level. There are two distinct stages of Prader-Willi syndrome in the development of a

child:

1. Stage One occurs during infancy. Infants have low muscle tone and are often

characterized as “floppy babies” and may experience feeding and swallowing

difficulties.

2. Stage Two occurs between the ages of one and two years and is characterized by an

obsession to eat resulting in excessive weight gain.

Other characteristics include the following:

trouble pronouncing words,

excessive sleepiness,

decreased pain sensitivity,

skin-picking habits, and

slowed growth.

Personality difficulties may emerge between 3 and 5 years of age and include the following:

temper tantrums,

stubbornness, and

acts of violence.

2. Age-Related Disabilities

An age-related disability may occur as a natural progression of the aging process and may affect

capacity in adults. Disabilities associated with aging are generally characterized by limitations in

performing activities of daily living (ADLs) such as bathing, dressing, eating, ambulating, toileting and

general hygiene. Age-related disabilities may accompany other medical and psychological conditions.

Chronic diseases like cardiovascular disease, chronic obstructive pulmonary disease, arthritis,

osteoporosis, visual and hearing impairments are among those conditions. Dementia and cognitive

decline are often diagnoses related to aging.

3. Mental Health Conditions

Mental health conditions include depression, bipolar disorder, delirium and dementia. Dementia is the

most well-known of these conditions. Dementia is a general term for a medical condition

characterized by a loss of memory and functioning. Two examples of dementia include alcohol-

induced and vascular dementia. Alcoholic-induced dementia is one of the most common forms of

dementia and is caused by the long term abuse of alcohol over 20 or more years. Vascular dementia

is caused by multiple strokes that accumulate and cause dementia.

There are other forms of dementia, such as Alzheimer’s disease, Pick’s disease and Diffuse Lewy

Body dementia.

Alzheimer’s disease is a specific form of dementia caused by a progressive brain disease

involving protein deposits in the brain resulting in disruption of neurotransmitter systems.

Symptoms include initial short term memory loss, followed by problems in language and

communications, orientation to time and place, everyday problem solving, and eventually

recognition of people and everyday objects. Alzheimer’s is generally progressive and

irreversible, ultimately resulting in a terminal state.

Pick’s disease is characterized by progressive deterioration of the brain’s nerve cells that take

on a particular shape referred to as “Pick bodies.” The symptoms of Pick’s disease include

dementia, aphasia or loss of language ability, personality changes and antisocial behavior.

Diffuse Lewy Body dementia is also a progressive neurological disorder. The condition is

sometimes associated with Parkinson’s disease. It may involve difficulty with abstract

thinking, short-term memory and cognition. Another common symptom is recurring

hallucinations.

Delirium is a temporary state of confusion that is sometimes misdiagnosed as a form of dementia.

Causes include dehydration, poor nutrition, taking multiple medications with resulting drug

interactions, and metabolic imbalances. Delirium can be temporary and reversible.

4. Acquired Disabilities

An acquired disability may occur at any age. Examples of causes include disease, oxygen

deprivation, infection, trauma to the head or severe injury to the spine.

An acquired brain injury refers to any type of brain damage that happens after birth, and includes

fetal alcohol spectrum disorders.

A spinal cord injury may occur because of an industrial or vehicular accident or violent crime

resulting in partial or complete paralysis.

A person can have a developmental disability and an acquired disability. This condition is

sometimes referred to as dual-diagnosis.

Other examples of acquired disability include alcoholism, substance abuse and various forms of

mental illness that impact abilities to think and to write, impaired memory and motor

coordination. The level of disability varies on a continuum from mild to complete impairment.

Under certain circumstances, an acquired disability may also be considered a developmental

disability. An example is a child who falls into a swimming pool and is deprived of oxygen. A

diagnosis of “intellectual disability” can result if the child’s IQ meets the statutory definition.

However, someone who experiences the exact same circumstances, but is over the age of 18 would

be considered to have an acquired disability.

The diagnosis of a disability alone is not determinative of the need for guardianship. Many people

with a disability have only physical impairments without cognitive or intellectual impairments.

Guardianship is not appropriate if the person only has a physical disability and no cognitive or

intellectual impairments that interfere with decision-making ability.

In fact, incapacity cannot be

inferred from a person’s intellectual disability.

Even the diagnosis of an intellectual or cognitive

disability does not automatically mean guardianship is the most appropriate decision-making option.

There are some common misconceptions surrounding disabilities that may lead to inappropriate

guardianships:

A person with an intellectual disability cannot achieve academically or professionally.

A person with an intellectual disability cannot be a productive member of the community, a

religious group, or workforce.

A person with an intellectual disability cannot have meaningful or intimate personal relationships.

Every disability involves some level of cognitive impairment or intellectual disability.

A person who does not use words to communicate (non-verbal) must have a guardian.

Every person with an intellectual disability or cognitive impairment is incapacitated.

Every person with an intellectual disability or cognitive impairment needs a guardian.

Every person receiving services through the Agency for Persons with Disabilities or living in a

group home is incapacitated.

The following vignette as well as the subsequent vignettes provided throughout the remainder of this

manual are based on actual cases reported by guardianship professionals anecdotally as the names

have been changed to protect their confidentiality. This first vignette demonstrates common

misconceptions some people may make about persons with disabilities.

Mike lives with quadriplegia alone in his own apartment. He receives homemaking

and personal care services from a governmental agency for a few hours each day.

He cannot perform any of his Activities of Daily Living (ADLs) on his own. He is

unable to transfer from his wheelchair to his bed without assistance. He is

incontinent of bladder and bowel. A friend comes over once a month and writes the

checks to pay his bills. His case manager at the governmental agency believes his

well-being was at risk living alone and sought the appointment of a guardian. Mike

successfully defeated the guardianship case by demonstrating he only had

physical disabilities and no cognitive or intellectual impairments.

An important concept underlying supporting persons with disabilities is the concept of dignity of risk.

This concept refers to an understanding that everyday life experiences come with risk and that all

people encounter success and failure in life. However, often when working with or supporting people

with disabilities, the natural inclination is to protect them from the natural risks associated with life.

Anyone working in this area should carefully examine their own assumptions to avoid being

overprotective. The goal when supporting persons with disabilities is to support their gathering of

information and options and then to help them consider and plan for obvious risks. When failure

occurs, and it will, be prepared to help the person learn and grow from the experience.

In practice, guardianship does not afford persons under guardianship the opportunity to experience

risk. The purpose of guardianship is to protect property and safeguard a person’s well-being.

The

guardian is vested with the authority to make decisions for the person and is held accountable for the

guardian’s decisions. In some respects, the guardian is responsible for the outcomes of decisions

made by the person under guardianship. A guardian can use the statutory mandate of honoring the

preferences of a person under guardianship as a mechanism for allowing greater choice for the

person under guardianship.

Section Two:

Options And Strategies

The Florida Legislature places a strong emphasis on ensuring the least restrictive decision-making

assistance is used. This section explores several alternatives to guardianship and possible strategies

that can be used to avoid the restrictiveness of a plenary guardianship. In a plenary guardianship, a

guardian is appointed to exercise all delegable civil rights removed by a court. Therefore, a plenary

guardianship is considered to be the most restrictive decision-making assistance option available.

An individual possessing legal capacity could choose someone else to exercise some civil rights.

Regardless of a person’s legal capacity, Florida guardianship law sets forth certain civil rights that

cannot be removed by a court.

Other civil rights set forth in the guardianship statute can be

removed only after a judicial process determining an individual’s legal incapacity.

A person who has been determined incapacitated retains the right:

1. To have an annual review of the guardianship reports;

2. To have a continuing review of the need for restriction of rights;

3. To be restored to capacity at the earliest possible time;

4. To be treated humanely with dignity and respect and to be protected against abuse,

neglect and exploitation;

5. To have a qualified guardian;

6. To remain as independent as possible, including having the ward’s preference as to a

place and standard of living in keeping with his or her financial, physical and mental

capabilities;

7. To be properly educated;

8. To receive prudent financial management for the ward’s property and to be informed how

the property is being managed;

9. To receive necessary services and rehabilitation;

10. To be free from discrimination because of incapacity;

11. To have access to the court;

12. To have access to legal counsel;

13. To receive visitors and communicate with others;

14. To have notice of all proceedings related to guardianship; and

15. To have privacy.

Rights that may be removed by an order determining incapacity and delegated to a guardian are the

right:

1. To contract;

2. To sue and defend lawsuits;

3. To apply for government benefits;

4. To manage property or make dispositions of property;

5. To determine residence;

6. To consent to medical treatment; and

7. To make decisions about social environment or social aspects of the person’s life.

Rights that may be removed by an order determining incapacity but not delegated to a guardian are

the right:

1. To marry (if the right to enter into a contract has been removed, the right to marry is subject

to court approval as marriage is a contractual right under Florida law);

2. To vote;

3. To have a driver’s license;

4. To travel; and

5. To seek or retain employment.

In a plenary guardianship, a guardian is appointed to exercise all delegable rights removed by a

court. A plenary guardianship is the most restrictive form of guardianship available; therefore,

alternatives to guardianship should be considered at every stage of a guardianship. Creative

strategies to build independence and limit guardianship can be used:

Prior to initiating a guardianship;

During the establishment of a guardianship;

To develop abilities of the person under guardianship with the goal of restoring one or more

rights; or

To replace an existing guardianship.

Florida law mandates judicial review of any alternative to guardianship that comes to the attention of

the court at any time in a guardianship case.

1. Supported Decision-Making

All people need support and assistance to manage their lives, some to a greater extent than others.

Support and assistance can come from various sources such as family members, friends, as well as

governmental and non-governmental programs.

Supported decision-making involves the person with a disability using the assistance of another

person to gather information about choices, weigh risks and benefits, evaluate the appropriateness of

alternatives and reach a conclusion. The person with a disability selects the individual or network of

individuals who provides the circle of support, but the person with the disability makes the actual

decision. A supported decision-making arrangement can be established informally or a more

structured arrangement can be drafted. For example, a person under guardianship could ask

someone to help identify residential choices or help create a budget and pay bills.

Supported decision-making is described as follows in the Handbook for Parliamentarians on the

Convention on the Rights of Persons with Disabilities:

With supported decision-making, the presumption is always in favor of the

person with a disability who will be affected by the decision. The individual is the

decision maker; the support person(s) explain(s) the issues, when necessary,

and interpret(s) the signs and preferences of the individual. Even when an

individual with a disability requires total support, the support person(s) should

enable the individual to exercise his/her legal capacity to the greatest extent

possible, according to the wishes of the individual… [p]paragraph 4 of article 12

calls for safeguards to be put in place to protect against abuse of these support

mechanisms.

The U.S. Administration for Community Living, Department of Health and Human Services has

established a National Resource Center for Supported Decision-Making.

The Resource Center

contains state comparisons; a research and resource library; educational and training resources; and

personal stories and examples of self-determination and supported decision-making.

Supported decision-making should not be considered in isolation. Supports and services that address

the limitations of a person with a disability can supplant the need for guardianships and can be used

as a part of supported decision-making. The federal Developmental Disabilities (DD) Act of 2000

allocates federal monies to the states to assist in providing comprehensive services and advocacy

assistance to persons with developmental disabilities. Florida’s legislative intent within the

developmental disabilities statute provides, “the greatest priority shall be given to the development

and implementation of community-based services that will enable individuals with developmental

disabilities to achieve their greatest potential for independent and productive living, enable them to

live in their own homes or in residences located in their own communities, and permit them to be

diverted or removed from unnecessary institutional placements.”

In the area of developmental disabilities, governmental programs and services are designed to

improve the quality of life of the person with a developmental disability. There is a broad array of

available services covering many aspects of community living such as in-home supports, supported

employment, personal care, training, and rehabilitative services. Two of the most widely used

governmental programs are Florida Division of Vocational Rehabilitation and the Agency for Persons

with Disabilities which provides services primarily through its Medicaid Home and Community Based

Waiver.

Waiver services have limited availability due to long wait lists and budget constraints. However, there

are procedures for “crisis enrollment.”

Crisis enrollment provides expedited enrollment on the waiver

and is only available if the service recipient is homeless, a danger to self or others, or the recipient’s

caregiver is unable to provide service.

If a person needs waiver services, but does not qualify for crisis enrollment, an individual can always

choose to privately pay for supportive services. For a thorough listing of services and service

providers available in Florida, searchable by zip code, see the online Resource Directory located at

www.apdcares.org. Additional resources can be found at the Florida Developmental Disabilities

Council website: www.fddc.org. Publications can be ordered singly or in bulk and are shipped free of

charge. One particularly helpful resource available through the Florida Developmental Disabilities

Council is the Planning Ahead guide.

The federal government and the State of Florida established a one-stop resource center focused on

supports for older persons and persons with disabilities called Aging and Disability Resource Centers,

formerly known as Area Agencies on Aging. To find these and other services, including local

community resources, call 211, a general information and resource telephone hotline.

Additional sources of supports can come from a personal network of friends, family, members of the

faith community and co-workers. The accompanying Guide and Workbook to this Manual include

strategies for building supports to act as decision-making resources for persons with developmental

disabilities. Services can be used to maintain residences, manage finances, provide oversight and

companionship to prevent exploitation.

Randy Roe is a 36 year old man who is literate and physically capable of

completing the average activities of daily living. His IQ is 59. Since becoming an

adult he has relied on residential and supportive services through the Agency for

Persons with Disabilities. He does not have significant familial support. He was

placed under guardianship due to his failure to pay for basic living expenses

despite receiving Supplemental Security Income (SSI). He became virtually

homeless. The guardianship stabilized his residential and financial situation,

however, he consistently and persistently opposed the guardianship. Over

several years, Mr. Roe participated in developing a monthly budget with his

guardian. After several hearings and over the objection of a physician’s

examiner’s report that found he continued to lack capacity, the court ordered

restoration of his right to manage his property with the condition that he would

use the services of a supported living coach through the Agency for Persons with

Disabilities to help him pay his bills.

2. Banking Services/Money Management

Bank accounts with authorized co-signors, direct deposit, online bill pay, and reloadable debit cards

are possible ways to involve persons with disabilities in the management of their money. A person

under guardianship may be willing to use one or more of these methods independently or with a

trusted person’s assistance. These mechanisms can be used creatively to give more freedom within a

guardianship with a designated amount of money. This is a way to give a person under guardianship

experience managing money without placing total assets at risk, ensures bills are paid timely, and

allows remote monitoring of accounts.

3. Representative Payee

A Representative Payee is a person or organization appointed by the Social Security Administration

to manage the social security cash benefit for persons the Social Security Administration deems

incapable of appropriately managing their social security benefits.

The Representative Payee must be authorized to act by Social Security and must submit an annual

report. If Social Security benefits is the only income received by the person and the guardian is the

Representative Payee, then an annual accounting does not have to be filed. Not having to file an

annual accounting can save guardianship and attorney fees in some cases.

4. Powers of Attorney

Because powers of attorney are flexible, they can be drafted to address a person’s specific needs.

Powers of attorney can be used to handle financial transactions and other specified acts on behalf of

the person.

An individual must have legal capacity to execute a power of attorney. In Florida, a person with a

disability has full legal capacity unless the person is adjudicated incapacitated pursuant to Chapter

744, Florida Statutes.

According to the Assessment of Older Persons with Diminished Capacity: A

Handbook for Lawyers, the standard of capacity necessary to execute a power of attorney is identical

to the capacity needed to contract.

Generally, the capacity to execute a contract or power of

attorney involves the ability to understand the nature and effect of the action.

One drawback to a power of attorney that should be considered by the practitioner is that a power of

attorney is effective upon execution. This makes it difficult to just use the power of attorney as a way

to avoid guardianship in the event a principal becomes incapacitated in the future. Florida has

abolished the use of a “springing power of attorney” which allowed someone to execute a power of

attorney before it was needed to be used, allowing the agent’s authority to “spring” into effect on

some specified event such as the principal becoming incapacitated. One practice is to have the

principal sign a durable power of attorney when the principal has capacity, but not deliver the actual

instrument to anyone until the principal is incapacitated. However, the logistics of this practice are not

fool proof.

Ned is an elderly man who was referred to guardianship because he did not

consistently pay his utility bill. Ned could not manage monitoring his mail or

writing checks to pay his bills. His professional guardian realized over time that

there was one particular neighbor of Ned’s who consistently helped him with

transportation and other self-care activities. On several occasions, it was the

neighbor who brought Ned’s needs to the attention of the guardian. With Ned’s

permission, the guardian approached the neighbor and asked if he would be

willing to take on a more responsible role in Ned’s care. Ned and the neighbor

agreed and the guardian filed a Suggestion of Capacity because a lesser

restrictive alternative was available. The examiner documented continuing

deficits in Ned’s condition and recommended no restoration, but the court did not

follow the examiner’s recommendation. At hearing, the judge asked several

questions pertaining to Ned’s understanding of a power of attorney. The judge

restored capacity and dismissed the guardianship with the understanding that

Ned would execute a power of attorney naming the neighbor as agent.

5. Health Care Advance Directives

Chapter 765 of the Florida Statutes governs health care advance directives such as health care

surrogate designations, living wills and medical proxies. The statute gives clear instructions that

health care advance directives are intended to be less restrictive than guardianship, providing

surrogate decision-making in the area of health care in circumstances where the principal has

capacity or lacks capacity.

Designating a health care surrogate involves having someone select another individual to make

health care decisions in the event of the person’s incapacity. In a guardianship proceeding, a judge

must determine the validity of any health care advance directives that existed prior to the

establishment of the guardianship.

Where there is the appointment of a guardian of the person over

health care decisions and the principal previously designated a health care surrogate, the judge must

include in his or her order and letters of guardianship the scope of authority that the guardian and

health care surrogate will exercise regarding health care decisions.

The standard of capacity

needed to appoint a health care surrogate is the ability to communicate a willful and knowing health

care decision.

If the person under guardianship can meet that standard, then the right to make

health care decisions should be able to be restored.

The procedure for determining capacity for the purpose of initiating a surrogate’s authority is different

than the incapacity procedure of Chapter 744, Florida Statutes. To initiate the authority of a health

care surrogate, the attending physician must evaluate the person’s capacity and enter that evaluation

in the patient’s clinical record. If the attending physician is uncertain whether the person has capacity,

a second physician must evaluate the patient and if the two agree, the declaration of incapacity for

the purpose of initiating a health care surrogate’s authority is entered into the patient record.

A living will is an oral statement or a written statement signed in the presence of two witnesses that

expresses a person’s instructions on life-prolonging procedures, such as resuscitation or artificial

feeding. It can also be used to express spiritual, personal or emotional wishes. A living will comes into

effect when the person loses capacity or the ability to express a decision and one of these three

conditions exists:

end-stage condition of a disease,

terminal illness, or

persistent vegetative state.

A medical proxy is an option that can be used when a person has not established an advance

directive, lacks capacity and needs medical decision-making assistance. Unlike an advance directive,

the person needing assistance is not able to choose who will make his or her health care decisions.

Florida law lists the order of priority of persons who can make health care decisions for an

incapacitated person or a person with a developmental disability:

a. a legal guardian or guardian advocate,

b. a spouse,

c. an adult child or a majority of adult children,

d. a parent,

e. an adult sibling or a majority of adult siblings,

f. any other adult relative,

g. a close friend,

h. a licensed clinical social worker selected in consultation with a bioethics committee

and who is not employed by the medical provider.

6. Trusts

There are potential advantages to using a trust to hold property or manage funds of a person with a

disability. Trust funds can only be used as the person granting the trust directs. Trusts offer a level of

protection and oversight unavailable to most informal arrangements. The Florida Trust Code, Chapter

736, Florida Statutes, sets forth provisions governing the creation and administration of trust estates.

One possible way to use a trust as an alternative to guardianship is to structure the trust giving trust

powers similar to the enumerated rights under guardianship and the trustee authority similar to the

delegable rights conferred to a guardian. The trust can contain restrictions or limitations on

distribution to reduce wasting or misappropriation of trust assets. Of course, a trustee must be

selected carefully to avoid exploitation. Special consideration of public benefit eligibility should be

taken when drafting trusts for persons with a disability. Trusts are similar to guardianship in that:

a trustee acts as a fiduciary;

the court can be called upon to provide oversight; and

civil and criminal penalties exist for breach of trust.

While the ultimate goal for persons under guardianship or guardian advocacy may be to have their

civil rights completely restored, other options that lead to greater choice and involvement in decision-

making should not be overlooked. The strategies that follow should be considered where appropriate.

Alternative Dispute Resolution options can be used in ways to reduce conflict in guardianship. A

Progressive Rights Restoration Plan is a new concept introduced as a result of the recommendations

of the Restoration of Capacity Study Project (2014) as a way to more formally document a person’s

efforts to build abilities and regain capacity with the goal of rights restoration. Limited Guardianship

and Guardian Advocacy are less restrictive forms of guardianship than plenary guardianships.

1. Alternative Dispute Resolution

Alternative dispute resolution can be especially useful for persons under guardianship to address

conflict with guardians and other interested persons and to negotiate greater freedoms within the

guardianship. Along with traditional mediation techniques, newer forms of alternative dispute

resolution are becoming available such as elder mediation and eldercaring coordination.

Attorneys

and judges should look for opportunities to refer conflicts within guardianships for alternative dispute

resolution.

While the question of capacity cannot be mediated, there are many advantages to using mediation in

guardianship cases. Cost, formality and giving the conflict resolution authority to a neutral third- party

are reasons to avoid guardianship litigation. Alternative dispute resolution can be used in various

stages of the guardianship process:

prior to initiating guardianship proceedings;

during the pendency of guardianship proceedings; and,

post adjudication and the appointment of a guardian.

Special considerations for alternative dispute resolution are:

person’s capacity to participate in mediation;

choice of participants in the mediation; and

confidentiality and privacy in mediation.

When considering restoration of rights, alternative dispute resolution may be a way to build

consensus among the guardian, the person under guardianship, and other interested parties to

loosen some restrictions of guardianship. Mediation may be a way to reach agreement on the

elements of a Progressive Rights Restoration Plan.

2. Progressive Rights Restoration Plan

A Progressive Rights Restoration Plan is a strategy designed to help the person under guardianship

make incremental steps towards restoring one or more rights. It can be used even before filing a

Suggestion of Capacity. It can also be used as a part of the restoration proceedings, including being

introduced at the hearing stage. Essential elements of a Progressive Rights Restoration Plan include:

identifying the right or rights seeking to be restored;

describing the incremental steps designed to develop abilities and who will perform those steps;

listing the person(s) responsible for monitoring the progress of those steps, if any;

setting benchmarks and assessment points that indicate significant accomplishments; and

setting target dates for completion.

A Progressive Rights Restoration Plan could be included as a part of the Guardian’s Annual Plan and

as a way to document the guardian’s activities to help the person regain capacity as required by

statute.

Or, a Progressive Rights Restoration Plan could be offered as an alternative to immediate

restoration of one or more rights. An attorney should carefully weigh the likely success of either

approach. The Workbook in this series offers suggestions of activities that build abilities in the area of

each civil right. Appendix A contains a blank Progressive Rights Restoration Plan and Appendix B

provides an example of a completed one.

James had a plenary guardian for many years because he mismanaged his

finances and was evicted from his apartment. During the guardianship hearing

process, James was largely silent. Later, James explained that he did not

understand that guardianship meant he would lose control of his finances and

the ability to choose where he lives. James’ attorney did not vigorously oppose

the establishment of the guardianship. Once James realized the impact of

guardianship in his life, he persistently asked how he could make the

guardianship go away. Finally, James found a willing attorney to represent him

and restoration proceedings began. The physician examiner reported that James

should remain under guardianship. At hearing, it seemed apparent from the

judge’s line of questioning that it was unlikely James would have any rights

restored. The guardian interjected and proposed an incremental plan to give

James more choice and freedom in managing his finances by giving James

increasing responsibility for paying items of his monthly budget. The judge

continued the restoration proceedings for six months, then held a status

conference, modified the plan and continued the proceedings for another three

months. At the end of the nine months, the judge asked whether the budget had

been followed, whether payments were made timely and whether any harm had

come to James as a result of managing his finances. The judge restored several

rights including the right to manage property.

3. Limited Guardianship

In 1989, the concept of the “limited guardian” was instituted for the first time in Florida. A limited

guardian is a person who has been appointed by the court to exercise the legal rights and powers

specifically designated by a court. The court must find that the person under guardianship lacks the

capacity to do some, but not all, of the tasks necessary to care for his or her person or property. A

plenary guardian is one who, after a court has declared an individual incapacitated and finds that he

or she lacks the ability to perform the tasks necessary to care for his or her person or property, is

appointed to exercise all the rights and powers of the person that can be delegated.

A limited guardianship gives the court the flexibility to tailor a guardianship to meet the specific needs

of the person. For example, a person with a disability may be more interested in deciding where he or

she will live and less concerned about the right to contract. If the concern that prompted the

guardianship is to safeguard property to avoid exploitation, then the person may be able to retain the

right to determine residence even though the right to contract or manage property is removed.

4. Guardian Advocacy

Guardian advocacy is only available to individuals with at least one of the five developmental

disabilities defined by Chapter 393, Florida Statutes.

Another statutory requirement of guardian

advocacy is that the individual must lack the decision-making ability to perform some, but not all

delegable rights.

To appoint a guardian advocate, the statutes do not require a determination of incapacity. This is one

of the main reasons people believe guardian advocacy to be less restrictive than guardianship.

Rather than having a team of experts (the examining committee) evaluate the individual and make a

written report to the judge, the judge can use educational evaluations, individual education plans,

support plans, and habilitation plans to address the individual’s area(s) of incapacity to determine

whether the individual needs a guardian advocate to exercise certain rights.

Another difference is that a guardian advocate need not be represented by an attorney unless

required by the court or if the guardian advocate is delegated any rights regarding property other than

the right to be the representative payee for government benefits. For these reasons, guardian

advocacy is usually considered to be less expensive, less intrusive and easier to implement than

guardianship. Whatever legal process is chosen (guardianship or guardian advocacy), the duties and

responsibilities of the guardian or guardian advocate are the same as defined in Chapter 744, Florida

Statutes.

Section Three:

Restoring Rights

Under the Uniform Guardian and Protective Proceedings Act (UGAPPA), guardians have an

affirmative duty to encourage the person under guardianship to participate in decisions and assist the

person in regaining capacity. Under Florida law, individuals under guardianship or guardian advocacy

who regain capacity are entitled to seek restoration through a well-defined process that includes due

process protections (see chart in Appendix C).

The legal process to restore one or more rights under guardianship begins with the filing of a

Suggestion of Capacity.

Any interested party, including the individual under guardianship, may file a

Suggestion of Capacity with the court where the guardianship is pending. A Suggestion of Capacity

simply must state that the person has regained the ability to exercise some or all of the rights that

were removed and a good faith reason for the belief. Upon the filing of the Suggestion of Capacity,

the clerk will notify all interested persons. The court will appoint a physician to examine whether the

person has regained capacity. If the physician recommends restoration of one or more rights, there

are no objections filed from any interested persons and the judge is satisfied that the examination

establishes by the preponderance of the evidence that restoration is appropriate, then the judge will

enter an order restoring one or more rights. If the physician recommends no restoration, or a timely

objection is filed, the court will set a hearing and appoint an attorney to represent the individual under

guardianship.

The process is substantially similar for individuals under guardian advocacy, except that a Suggestion

of Restoration of Rights starts the process.

In addition, the court relies on reports and other relevant

information about the person’s abilities rather than a report of the court appointed physician evaluator.

A Suggestion of Restoration of Rights must include a list of each right requested to be restored, and:

evidence of the person’s increased abilities for each right requested to be restored (it is a good

idea to include a signed statement from a doctor or other medical provider that says the

person should get right(s) restored); or

a statement of good faith explaining why the person can now exercise each right without a

guardian advocate.

Upon the filing of the Suggestion of Restoration of Rights, the clerk will notify all interested persons

and the judge will appoint an attorney if the person is not represented by counsel. If the Suggestion

does include evidence, the judge will review the evidence to either immediately restore the rights

requested or set for hearing. A hearing will be scheduled if:

the judge requires additional evidence or testimony;

the Suggestion does not include evidence that supports increased abilities; or

any interested persons object to the restoration.

If the Suggestion does not include evidence that supports increased abilities, the judge will set a

hearing to review evidence and hear testimony. If any interested persons object to the restoration, the

judge will set a hearing. The judge will then enter an order denying restoration or restoring the right or

rights requested.

A survey of Florida case law on guardianship restoration reveals a limited number of judicial appellate

decisions on the general subject of rights restoration. A synopsis of the cases that cite Chapter

744.464, Florida Statutes, are:

A case that held there was no conflict of interest when an attorney represented a person under

guardianship and other multiple parties all of whom were interested in seeking restoration of

rights.

A third party engaged counsel to represent a person under guardianship for restoration of rights

and removal of guardian. The court held that if the right to contract is removed, the person

can only retain counsel if the court appoints the counsel or the guardian retains the counsel.

A woman under guardianship established capacity and obtained restoration of her rights despite

a challenge from her son. Interestingly, the court appointed a three-member committee to

evaluate her capacity rather than the physician evaluator required by the restoration statutes.

The trial court proceedings also included depositions of the woman’s personal physicians.

A guardian and daughter of the person under guardianship sought revocation of a will executed

prior to the person’s incapacity alleging the undue influence of a non-relative, third party, in

establishing the will. The appellate court agreed with the trial court that the guardian could

not revoke the will on the person’s behalf and cited the restoration provisions of Chapter 744

as a possible way for the person under guardianship to establish her capacity in the area of

establishing a will.

A comprehensive analysis of restoration case law across the country provides insight into restoration

in practice and judicial treatment of petitions for restoration.

Dating back to the mid-19th century,

restoration case law nationwide has evolved from an extremely paternalistic and protective approach

to a more person-centered mentality focused on the individual’s capacity and ability to make and

communicate decisions for themselves. Until the 1970’s, courts commonly determined that the

individual had capacity but denied restoration based on the court’s belief that the guardian could

manage the affairs of the person under guardianship better than the individual could.

From the case law, it appears that the great majority of petitions for restoration are filed by older

persons and persons with mental illness.

Very few petitions for restoration are filed by individuals

with developmental or intellectual disabilities nor from individuals suffering from brain injury. It is

unclear whether this is due to a disproportionately greater number of guardianships for older persons

and persons with mental illness or due to some other reason. Petitions for restoration filed by older

persons and persons with mental health were granted more frequently than petitions from individuals

with developmental or intellectual disabilities or individuals with a brain injury.

Although almost all states permit the person under guardianship or any interested party to petition for

restoration, in seventy-five percent of the cases the person filed the petition, either pro se or with

counsel.

In about ten percent of cases, a family member or friend filed the petition on behalf of the

person.

In a smaller number of cases, the guardian was the petitioner.

The case law show that courts rely most heavily on an evaluating physician’s report in making

determinations as to capacity and restoration.

Often, the physician’s report is the primary piece of

evidence swaying the court’s decision one way or the other. In cases where the person under

guardianship testifies at trial, courts rely heavily on the individual’s demeanor and ability to correctly

answer questions. Where the individual testifies at trial, cases are relatively evenly split in regards to

granting or denying restoration. It appears that individuals who can rationally and correctly testify as

to their guardianship and other aspects of their life has a greater likelihood of convincing a court that

they have regained capacity.

One fairly recent change to state law that is of particular interest in the context of restoration is in

Illinois, which now allows the court to modify or revoke letters of guardianship based on a verified

petition signed by the person under guardianship and the guardian which indicates that the person

has regained capacity.

While this may make it easier for restorations to occur when the guardian is

supportive, it should be noted that Illinois law also provides that a petition for restoration not

supported by the guardian must be supported by clear and convincing evidence, which is actually a

higher standard of proof than in Florida.

Michigan has also significantly revamped its guardianship system and there are several changes to

the Michigan statute that are notable. One is that courts are required to review the continued need for

a guardian one year after appointment and every three years thereafter. Another is that the individual

under guardianship is entitled to an independent evaluation by a physician or professional of his or

her choice, which will be paid for by the state if the individual is indigent; and, the individual is entitled

to a trial by jury on the issue of incapacity. Finally, Michigan law gives priority to the guardian of the

individual’s choosing over all others, including relatives.

Statutory changes outlined here are designed to increase the self-determination of individuals either

by raising the bar for imposing guardianship in the first place or by granting more autonomy and

authority to individuals once they are under guardianship. Additionally, there are efforts underway to

assist individuals with having their rights restored. As an example, Disability Rights North Carolina

includes on its website detailed instructions on how to petition the court for restoration.

Every person under guardianship has the right to restoration should he or she regain capacity

sufficient to manage his or her affairs, but not all individuals who regain capacity are restored. There

are numerous barriers to restoration that can prolong the guardianship long after the regaining of

capacity. Due to the state-specific nature of guardianship law, the procedural process, the court’s

duties, and the guardian’s responsibilities vary significantly by state, court, and judge. As a result,

some barriers are statewide while others vary among jurisdictions, courts, and judges.

1. Lack of Access to Counsel of Choice

It is critical for the person to secure counsel should the petition proceed beyond the initial

communication to the court.

Once an individual loses the right to contract, it may be difficult for the

person under guardianship to independently hire an attorney to pursue restoration. The likelihood of

non-payment of attorney fees and the ethical concerns of lack of capacity deter attorneys from

restoration petitions. In Florida, the person under guardianship may hire an attorney of his or her

choice if the individual retains the right to contract, otherwise, the court will determine who represents

the person under guardianship during the restoration process.

2. Lack of Awareness of the Right to Restoration

The individual under guardianship may have disabilities that prevent him or her from comprehending

legal terminology regarding removal and restoration of civil rights. For many persons under

guardianship there is little opportunity to learn of the right to be restored. Once under guardianship,

the individual may live isolated from society. The order of guardianship may be the only opportunity to

notify them of the right to restoration, but often the order does not clearly state the right to

restoration.

3. Lack of Established Systems Dedicated to Providing Support to

Individuals who have some or all Rights Restored

Once the guardianship is removed, the individual may regain financial and personal obligations that

the person was not responsible for during the guardianship. Without support systems to ease the

transition out of guardianship, the individual may lack the guidance necessary to learn how to

manage his or her own affairs independently or with support.

4. A National Perspective on Barriers in the Judicial Process

Should the individual pursue restoration, he or she may face barriers in the judicial process. For

example, courts rely heavily on the recommendations of a physician to determine whether an

individual has regained capacity. But often, the physician does not specialize in neurocognitive or

psychiatric health. Familiarity with mental health and developmental disabilities is not a perquisite for

a physician to conduct an examination of the person and determine whether he or she has regained

capacity.

A lack of clear statutory legal procedure for restoration creates a barrier to restoration because the

courts have little guidance and the decisions lack uniformity. This ambiguity may deter potential

petitioners from pursing restoration. For example, thirty-three states do not expressly provide an

evidentiary standard in restoration proceedings, leaving courts to determine the adequacy of

evidence and the appropriate barriers to restoration. In a restoration proceeding, the petitioner has

the burden to show that the person has capacity to manage personal or financial affairs such that

guardianship is no longer necessary.

The burden then shifts to the party opposing restoration to

prove the continuation of incapacity. Unlike in a petition for appointment of a guardian where the

burden of proof is generally clear and convincing evidence, the standard in termination proceedings

varies greatly and is often unclear.

Of the states that define an evidentiary standard, two states require the relatively low standard of

prima facie evidence,

seven states use a preponderance of the evidence standard,

and eight

states use the higher standard of clear and convincing evidence.

Mississippi requires “such proof as

the chancellor may deem sufficient.”

In spite of the variation and ambiguity, it is clear that at least

eight states require courts to use a lesser burden of proof (either prima facie or preponderance of the

evidence) in a petition for termination than in an initial petition for guardianship. In all other states, the

petitioner for restoration may face a greater barrier due to the greater evidentiary standard that he or

she must meet. In states that have not codified an evidentiary standard, there is little guidance for

courts to decide the level of evidence necessary to show that the person has regained capacity

sufficient to manage his or her affairs.

Another state-specific barrier is moratorium periods on filing requests for review. States may enact

procedural bars to petitions for restoration. Eleven states permit courts to specify a minimum time

period after the issue of the order adjudicating incapacity during which a petition for a review of the

order may not be filed without special leave, generally lasting for no longer than one year.

While this

may reduce frivolous and hasty attempts to remove a guardian, it could delay legitimate petitions for

restoration of rights.

Four states specify a period during which a petition for reconsideration of a determination of

incapacity cannot be filed, regardless of what the original order says.

Arizona precludes an

interested person, other than the guardian or the person under guardianship from filing such a petition

within one year of the order adjudicating incapacity unless the court believes that the individual is no

longer incapacitated.

Texas expands the one-year period to allow anyone to file the restoration

petition.

Iowa and Wyoming preclude the filing of any petition for termination within six months of the

denial of a former petition for termination.

In states that limit the time in which a petition for

restoration can be filed, individuals who may have regained capacity within that time must wait until

the time period ends before petitioning for restoration.

Another judicial barrier to restoration is the lack of clear procedural safeguards in the state restoration

statute. In particular, thirty-one state statutes do not expressly permit the petitioner to informally

communicate a request for restoration as opposed to filing a formal application.

In these states, the

judicial process is less accessible because the individual may need to secure counsel to file a petition,

and the financial cost and time may deter interested parties from taking action.

An additional barrier in many states is the lack of periodic assessment of capacity by courts to

determine whether guardianship is still necessary. Following appointment of a guardian, courts have

an on-going responsibility to ensure that the terms of the order remain consistent with the

respondent’s needs and conditions.

Only three states, Connecticut, Missouri, and New Mexico,

require the court to periodically analyze whether the individual’s circumstances have changed

sufficiently to justify termination of the guardianship and restoration of rights. In states without such

procedural safeguards, the court is unlikely to pursue restoration without a petition even when the

mental capacity of the individual improves. Ordinarily, once a guardian has been appointed, the court

will act only if a moving party so requests. Florida is unique in its annual review of the need for

guardianship.

Three states have placed a barrier on restoration by limiting who can petition for restoration.

While most states permit the person under guardianship or any interested party to seek restoration,

Connecticut, Iowa, and Wyoming, only permit the person to petition for restoration. New Jersey limits

authority to the individual and the guardian.

Section Four:

Best Practices For Guardianship Professionals

Attorneys play an integral part in guardianship proceedings. Attorneys represent alleged

incapacitated persons; attorneys represent guardians in the administration of a guardianship estate;

and, attorneys advise, counsel and sometimes represent interested persons or family members in

bringing petitions to the attention of the court or when a dispute arises. In addition, an attorney is an

officer of the court and has an ethical responsibility to address injustice in the legal process.

attorney may have different roles or functions in a guardianship case, but the overall underlying

principle is that an attorney working in a guardianship case is ultimately working to benefit the person

under guardianship.

1. Right to Counsel

Persons under guardianship have an ongoing right to counsel throughout the guardianship.

However, a person under guardianship whose right to contract has been removed cannot obtain the

services of an attorney without the assistance of the guardian. Requiring the guardian’s involvement

or assistance before an attorney can be obtained, effectively serves as a barrier to restoration if the

guardian opposes restoration. A guardian who does not agree with the request for counsel by the

person under guardianship may choose not to execute the attorney’s retainer agreement and the

person under guardianship does not have the legal authority to do so. Attorneys approached by the

person under guardianship for representation should anticipate possible objections to the attorney’s

appointment and be prepared to advocate for the person’s choice of counsel. Attorneys representing

guardians owe a duty to the person under a guardianship.

2. Attorney-Client Relationship with a Person under Guardianship

A lawyer should maintain a normal attorney-client relationship with a person under guardianship as

much as reasonably possible even though the client may have a disability.

The lawyer should

always begin with the assumption that the person is capable of making decisions about the

representation unless the person has been determined incapacitated, either through a court or as a

part of the advance directives process. Even where there is a determination of incapacity, the lawyer

should recognize and follow to the extent possible, any stated preferences of the person.

… an incapacitated person may have no power to make legally binding

decisions. Nevertheless, a client lacking legal competence often has the ability

to understand, deliberate upon, and reach conclusions about matters affecting

the client’s own well-being.

When representing a person in restoration proceedings, the lawyer must resist the temptation to

impose his or her own opinion about the person’s capacity, but instead should assert the person’s

preferences and goals throughout the representation.

3. Accommodations

The lawyer willing to represent persons seeking restorations should make their offices as

accommodating as possible. Many times, people with intellectual disabilities have accompanying

physical disabilities that may affect their gait, hearing or eyesight. Assess your office environment.

Is the lighting supportive of reading?

Are your written materials ADA compliant?

Are the acoustics in the office suitable for someone with hearing impairments? (For example, is

there background noise that could interfere with conversations?)

Is your office staff patient and friendly?

Have you scheduled adequate time for interviews?

Are you intentionally speaking to the person clearly and slowly?

Is it wheelchair and walker navigable?

When scheduling initial interviews, prescreening staff should ask if there are special needs or if a

particular time of day would be better for the interview.

4. Working with Interested Persons

It is important to take special care in identifying who is the client in the attorney-client relationship and

the role of other interested parties.

Who brought the person to the lawyer’s office?

Who is seeking the representation, the person or someone else, such as a family member or

service provider?

Who is paying the attorney’s fees?

Who is controlling the conversations during the client interview, the third party or the person

under guardianship?

Once the attorney-client relationship is established, the attorney must take special care to protect the

client’s confidential communication or seek the consent of the person under guardianship to

communicate with others.

In the restoration process, guardians and family members may be supportive or opposed to having

the person’s rights restored. There may be some who assist or guide the individual in establishing

capacity. In fact, the accompanying Workbook and Guide to this Manual are designed to include

others in the restoration of rights process. People in opposition to the restoration can still have the

person’s best interests in mind and have genuine concerns about the person’s well-being. However,

there may be improper motivation for opposing restoration such as wanting to control the person or a

desire to exploit the individual.

When representing the guardian, the attorney should encourage and advise the guardian to engage

in activities with the person under guardianship to build the person’s abilities in each civil right

removed to the extent possible. The attorney should also monitor and review the report of guardian of

the person to ensure the statutory requirement of reporting restoration activities is met.

5. Evaluating the Case for Restoration

The attorney representing the person under guardianship is responsible for evaluating whether the

case meets the legal criteria for restoration. The attorney should consider the following factors:

Which right or rights is the person seeking to have restored?

Is there sufficient evidence of capacity with respect to those rights to support restoration?

Why was the guardianship filed?

How have initial circumstances changed or initial concerns addressed so that there is no longer

a need for guardianship?

Does anyone else support the effort to seek restoration? The guardian? Family members?

Service providers?

Are there individuals other than the person seeking restoration that would benefit directly from

the person’s restoration or related litigation?

What are the motives of the persons supporting restoration?

What are the motives of the persons opposing restoration?

What are the person’s current abilities for each civil right?

What skills need to be developed by the person?

Caution should be exercised by the attorney when evaluating the claims of capacity of the individual.

Any personal biases, misconceptions or judgments should be put aside and the attorney must

evaluate the claims of capacity as objectively as possible.

A thorough investigation should be done by the attorney concerning the claims of the person

regarding the individual’s abilities in the area of the civil right. The Workbook and Guide can be useful

resources for the attorney. The attorney should expand interviews to include the person’s support

circle for useful information as to the person’s abilities. The people in the support circle may serve as

potential witnesses in the restoration proceedings. Particular attention should be given to community

service programs that provide assistance to the individual.

Do not disregard areas of deficits or impairments the person may have. Address any deficits directly

and prepare a credible response for the court of how, despite the deficits or impairments, the

individual’s health and safety are not likely to be jeopardized by restoring rights.

The attorney should be familiar with the different capacity standards applicable to each civil right. For

example, the capacity standard for providing informed consent has different elements than the

capacity standard to contract. For a more thorough discussion of capacity standards, please see the

Assessment of Capacity for Older Adults with Diminished Capacity.

If the attorney is appointed prior to the examination of the person by the physician, the attorney

should consider being present at the examination, if feasible, and to appropriately prepare the person

for the examination. The attorney should explain the purpose and importance of the examination to

the person prior to the examination. Hopefully, adequate preparation will help the person be candid

and open regarding personal matters.

6. Hearing Preparation

In preparing the client for the hearing, consider any special needs of the person. Ensure adequate

time for the hearing. If the person will speak at the hearing, make sure you go over in detail what the

person can expect, such as:

a description of the room;

where people sit;

when it is appropriate to talk;

what is appropriate dress;

how to handle emotions if something is said that the person does not agree with or may make

them angry; and

what are written and unwritten rules of courtroom decorum.

Make sure you understand how the person will be transported to the courtroom and who will

accompany the person. In communicating the time and place of the hearing, encourage the person to

arrive early. Explain the security screening process in courthouses. Determine whether assistive

devices are needed for the person’s participation at the hearing and make timely requests for

accommodations. Accommodations available at no cost may include assistive listening devices or

interpreter services for persons with hearing loss, for example. Contact the court in advance to

request accommodations such as microphones, amplifying devices, or physical access to all parts of

the courtroom, including the witness stand.

Consider carefully the evidence you plan to present. The completed activities in the accompanying

Workbook may be evidence that a particular skill has been achieved. Or, the Workbook pages can

form the basis for a Progressive Rights Restoration Plan. Compile other records and gather other

supporting evidence that will support the case. Use the evidence to paint a picture of what the

person’s life will look like after the right is restored. The goal is to assure the judge that the initial

reasons for imposing the guardianship no longer exist.

It may be unusual for the physician evaluator to testify at the hearing; however, consider deposing the

physician. Also, consider getting an expert opinion from other professionals, especially those

professionals familiar with the person’s type of disability. Of course, cost is always a factor in

obtaining additional assessments. Consider the person’s health insurance and social services as

possible resources to obtain the additional examination. Other potential witnesses to consider could

be anyone involved in providing support and assistance to the person. Case managers or care

coordinators assigned to the person may also be good resources.

It is unlikely that a court will consider restoring rights without talking to the person under guardianship.

Preparing a mock hearing to help the person become accustomed to answering questions in the

courtroom setting may be helpful, and especially practice cross-examination. Additionally, prepare the

person for questions directly from the judge. Identify the weaker parts of your case and prepare

responses, if questions arise. The attorney should use his or her judgment in deciding whether to

aggressively pursue restoration or to suggest a Progressive Rights Restoration Plan.

7. Strategies at Hearing

It goes without saying that a restoration hearing is inappropriate for a general motion docket and

sufficient time should be set aside for the hearing to present all relevant evidence. Consider invoking

the rule of sequestration of witnesses if family dynamics are at issue and to protect the privacy of the

person under guardianship. If allowed an opening statement, make sure to include general references

to the legislative intent of guardianship being a last resort.

At the hearing, do not assume your client is following the pace of discussion. Sometimes, to expedite

time, lawyers and judges communicate in a way they understand that may not be clear to a

layperson.

Consider, carefully, the order in which you intend to present evidence. It is generally useful to build

the case of capacity and ability using evidence presented by third parties, such as support

coordinators or supported living coaches. Save the questioning of the person under guardianship as

the last witness.

If objections to the restoration were made, where applicable, carefully construct arguments that

challenge:

the experience the evaluating physician has working with persons with developmental

disabilities;

whether the evaluating physician inappropriately focused on diagnoses and prognosis rather

than functional abilities of the person;

whether the evaluating physician considered the person’s ability to exercise the right with

assistance; and

whether appropriate assistive devices were used during the physician’s examination.

Special attention should be given to cross-examination of guardians or other interested persons.

Focus on their role to promote independence and restoration. Challenge conclusory statements and

unsupported opinions. Address how assistance and supportive services can alleviate potential

adverse situations speculated as a result of restoration. Lastly, look for opportunities at the hearing to

suggest guardianship alternatives or a Progressive Rights Restoration Plan as options to the denial of

restoration rights.

Every judge sitting in the role of trier of fact knows how to apply the facts presented to the applicable

law. This section of the Manual addresses additional items a judge may want to consider in a

restoration case. The primary role of the judge in a restoration case is to ensure procedural due

process is provided, evaluate the evidence presented, and rule on the merits of the case. Just as the

attorney must consider his or her office environment, so too should the court consider the access to

the courthouse and courtroom for persons with disabilities.

1. Suggestion of Capacity

A person under guardianship or an interested person may file a suggestion of capacity with the court.

Sometimes, a person acting pro se may communicate a desire to seek restoration of rights in the

form of a letter or other correspondence and not in a pleadings format. The judge has the discretion

to consider any writing as a Suggestion of Capacity or a Suggestion of Restoration of Rights where

the circumstances are clear that the person wants to pursue terminating the guardianship.

The suggestion of capacity must be filed in the county where the guardianship case is pending. Once

the suggestion of capacity is filed, the statute is clear that the court must immediately appoint a

physician.

However, the timeframe for appointing counsel to represent the person seeking

restoration in a guardianship case is less clear. The statute seems to suggest that the appointment of

counsel is considered at the hearing stage, not at the filing of the Suggestion of Capacity.

The better

practice is to ensure the person is represented by counsel as early as possible in the proceedings.

Notably, the filing of a Suggestion of Restoration of Rights under guardian advocacy does require that

the judge appoint counsel for the person with a developmental disability within three days of filing of

the Suggestion of Restoration of Rights.

Additionally, the person may request to substitute his or her

own attorney for the attorney appointed by the court.

2. Appointment of Physician Examiner

The only statutory requirements governing the appointment of the physician to conduct the

examination is that he or she must be appointed immediately upon the filing of the Suggestion of

Capacity.

Some courts use the guardianship examining committee registry as a source for physician

evaluators. In rural areas, this may present a potential conflict in that the physician who served on the

examining committee that initially recommended an incapacity determination may be the only

physician available to conduct a restoration evaluation.

Additional sources to find physician evaluators are area medical schools, clinics and hospitals.

Medical directors at skilled nursing facilities may be a good resource because those doctors are

accustomed to traveling to the location of their patients. Psychiatrists used as experts in criminal

cases may also be a potential resource to conduct restoration examinations because those

psychiatrists are accustomed to providing opinions in legal matters. Additional training should be

encouraged when using physicians who are unfamiliar with decisional capacity standards in

guardianship cases. Courts should ensure that physicians fully understand their role and the legal

standards involved in guardianship restoration cases.

3. Additional Considerations

Assess if evidentiary information is sufficient. In other types of legal proceedings, the judge’s role is to

simply evaluate the evidence presented. Not so in a guardianship restoration proceeding.

If a judge believes evidence on capacity is insufficient or inadequate in any respect, the judge can

continue the proceedings and instruct parties to obtain additional evidence or assessments.

The judge should make sure the parties bring relevant evidence regarding capacity if evidence

is lacking.

The judge may wish to independently inquire of the person under guardianship or other witnesses in

determining whether an evidentiary basis for restoration exists. Of course, the person cannot be

compelled to testify. To ensure objectivity, the judge should be aware of common misconceptions

surrounding disabilities as stated on page 8.

Incapacity does not mean:

• illiteracy;

• inability to communicate verbally;

• inability to personally perform activities of daily living; or

• being eccentric or choosing to live a non-ordinary lifestyle.

The judge has an affirmative responsibility to ensure the use of lesser restrictive alternatives. It is

appropriate for the judge to suggest creative solutions that may lead to restoration, understanding

that trial and error are viable options. The Progressive Rights Restoration Plan is a good tool to use

for this purpose.

Florida Statutes are clear on a preference against guardianship and a judge must consider all other

lesser restrictive alternatives before establishing or maintaining a guardianship. Some incapacity

conditions may be temporary or reversible. Every available opportunity to allow a demonstration of

the capacity of the person under guardianship should be explored.

Florida Statutes also give the judiciary specific mandates to instruct guardians by detailing their scope

of authority. Section 744.344, Fla. Stat., affirms, “The order shall state the specific powers and duties

of the guardian.” A slight modification lessening the control of a guardian can afford a person under

guardianship a degree of dignity and an opportunity to show that perhaps the future restoration of one

or more rights does not necessarily mean the person’s life will be in jeopardy or property wasted.

Examples of refinement of rights or rights restored include:

choice of roommates or determining living arrangements;

freedom to spend small amounts of money;

initiating and following a schedule of leisure and work activities; and

determining the degree of participation in religious activities.

In cases where complete restoration of rights is not immediately clear or obvious, the court should

consider affording greater participation in decision-making within the guardianship. The court can

provide instructions to the guardian to engage in capacity building activities. The Workbook and

Guide can be used as tools in this area. A Progressive Rights Restoration Plan can be used if the

court denies restoration of some or all of the rights. The Court can initiate the use of a Progressive

Rights Restoration Plan on its own initiative.

4. Orders

Florida Statutes provides for disposition of a restoration case without a hearing in certain limited

circumstances.

The physician must submit his or her report within twenty (20) days after the court’s

appointment. If the judge is satisfied that the examination establishes by the preponderance of the

evidence that restoration is appropriate and there are no timely filed objections, the court shall enter

an order restoring all or some of the rights. The order must be entered within thirty (30) days of the

examiner’s appointment. Adherence to the time frames ensures prompt resolution of the case in

keeping with the idea that guardianships should only be in place for as limited time as possible.

If there are timely filed objections or the court is not satisfied with the examination, the court shall

conduct a hearing. Upon conclusion of the hearing, the court shall enter an order denying restoration,

or restoring some or all of the rights upon the court’s finding that the person has met the burden of

proof. The person under guardianship must prove by a preponderance of the evidence that

restoration of some or all of the rights are appropriate and warranted. If only some rights are restored,

the order must state which rights are restored. The guardian shall file a new guardianship report,

presumably a new plan, within sixty (60) days of the entry of the order.

Guardians have an affirmative responsibility to help build the person’s abilities in each civil right that

has been removed. A guardian of the person must include in each annual plan any activities the

person under guardianship engaged in that were designed to enhance capacity.

The annual plan

must name any rights the guardian believes the person under guardianship has developed the ability

to exercise.

Guardians should actively seek opportunities to promote therapies and education. The

Workbook and Guide in the Developing Abilities and Restoring Rights series can be useful tools in

designing activities to achieve this goal. Additionally, at any time after the appointment of a guardian,

Rule 5.685, Florida Probate Code, requires the guardian shall bring to the court’s attention any

suitable alternative to guardianship.

Even in guardianship, a person should be encouraged to exercise decision-making to the extent

possible. The National Guardianship Association (NGA) Standards of Practice 9 – Self Determination

of the Person states:

I. The guardian shall provide the person under guardianship with every opportunity to

exercise those individual rights that the person might be capable of exercising as

they relate to the personal care and financial needs of the person.

II. The guardian shall attempt to maximize the self-reliance and independence

of the person.

III. The guardian shall encourage the person to participate to the maximum extent of the

person’s abilities, in all decisions that affect him or her, to act on his or her own behalf in all

matters in which the person is able to do so, and to develop or regain his or her own capacity

to the maximum extent possible.

IV. The guardian shall make and implement a plan that seeks to fulfill the person’s goals, needs

and preferences. The plan shall emphasize the person’s strengths, skills and abilities to the

fullest extent in order to favor the least restrictive setting.

V. The guardian shall, whenever possible, seek to ensure that the person leads the planning

process, and at a minimum to ensure that the person participates in the process.

In essence, the NGA Standards of Practice promote guardians honoring the preferences of the

person and using supported decision-making wherever possible.

1. Role

When establishing a guardianship, a three-member examining committee is appointed to examine

and recommend to the court which rights, if any, should be removed and delegated to another person

to exercise. However, in guardianship restoration cases, a physician is appointed to examine whether

the person has regained capacity. Examinations for persons with intellectual disabilities can be

particularly challenging for physicians who may not have specific experience in the area of intellectual

disabilities. Often, the questions of capacity are not physical in nature, but are functional in nature.

Scholars, researchers, and clinicians have studied various ways of assessing decisional capacity and

have created a body of scholarly work in the area. Standards for capacity differ according to the right

being evaluated. For example, there is one standard for capacity to make medical decisions and a

different standard for capacity to vote. Nevertheless, a common thread discussed across the different

standards of capacity is whether a person understands the nature of the decision and the risks,

benefits and alternatives presented by the choices.

Examiners should never assume that persons with disabilities automatically lack capacity. When

assessing capacity, examiners should remember that capacity may be temporary due to medical

reasons such as an infection or reaction to medication. Capacity may be situational and contextual.

There may be resources and support services available that can affect any assessment of capacity.

For example, if an individual has the services of a supported living coach who can assist in gathering

information on residential options, the individual may have the capacity to determine residence.

2. Functional Assessment Examinations

Florida law requires a focus on the functional ability of the person to exercise the particular right in

question. This emphasis on functional ability goes beyond assessing an individual’s ability to perform

activities of daily living. When performing a capacity examination, the examiner should use targeted

questions, direct assessment and observation of functioning for the specific right in question.

Additional considerations are:

A physical examination should rule out medical causes of incapacity.

The examiner’s report should include any recommendations for future assessments or

treatments that may increase capacity.

Examiners should disclose the basis for their recommendations and list any tests or instruments

used for assessments.

Examiners should determine the type of data needed. For example, if the right being considered

for restoration is largely decisional in nature, like the right to contract, then the examiner

should focus on cognitive tests involving memory, reasoning and cognitive functioning. Or, if

the right being considered for restoration is functional in nature, like the right to drive, then

the examiner should focus more on observation of personal skills as well as judgment and

reasoning ability.

Client Interviews are by far the most common method of examination.

3. Tools and Instruments

In screening individuals for incapacity, the examiner should use tools and instruments that the

examiner has experience using. Some screening instruments may be specific to a particular

profession, i.e., psychological tests. Other instruments like the Mini-Mental State Examination is used

widely among lay members of an examining committee.

Other screening instruments made available from the national Alzheimer’s Association are listed

below:

Alzheimer’s Association Tools for Early Identification of Dementia

Geriatric Depression Scale and Single-Item Depression Indicator

Functional Activities Questionnaire

Cognitive Incapacity and Problem Behaviors Assessment

Section Five: Conclusion

For a practitioner interested in maximizing the independence of persons with a disability, the

Developing Abilities and Restoring Rights: A Manual for Legal Professionals is just the beginning.

Use it as a starting point in the search for resources and the development of creative strategies to

develop and build independence among people who are under guardianship. The legislative intent of

Chapter 744, Florida Statutes, states that the guardianship process should assist persons in

developing or regaining their abilities to the maximum extent possible and this can be realized when

guardianship professionals value the individual’s dignity and humanity.

Section Six: Appendix

APPENDIX A: PROGRESSIVE RIGHTS RESTORATION PLAN

Right to be

Restored

Goals

Steps

Who Will Assist

Target Date for

Completion

Comments

Goal #1

Goal #2

Goal #3

APPENDIX B: PROGRESSIVE RIGHTS RESTORATION PLAN (EXAMPLE)

Right to

Restored

Goals

Steps

Who Will Assist

Target

Date for

Completion

Comments

Goal #1:

Complete

money

manage-

ment

course:

Money

Smart

1. Decide whether to

take course on line,

web-based or

classroom

Mary Ann will

discuss with Bob &

reach conclusion

1-Mar

person under

guardianship = Bob

guardian = Mary Ann

attorney = John

2. Sign up for course

or get DVD

Bob will do with

Mary Ann’s help, if

needed

3-Mar

3. Complete course

Bob will do with

James - Mary Ann

available if needed

30-Mar

Mary Ann will ask Bob’s

supported living coach to

assist him with the course

(SL coach = James)

Goal #2:

Begin to

Manage

Money

1. Develop a budget

and all sources of

income

Bob, James and

Mary Ann

5-Apr

2. Identify several

activities that Bob

wants to do, are in the

budget and that can

be paid for with cash

Bob and James

5-Apr

3. Discuss with Mary

Ann to approve cash

purchases and how

often Bob will get

money, need for

receipts, etc. (weekly,

bi-weekly)

Bob, James and

Mary Ann

5-Apr

4. Review after one

month to see how

Bob’s budget and

expenditures went

Bob, James and

Mary Ann

30-Apr

on-going - as Bob

becomes accomplished,

authority and

responsibility expands

Goal #3:

Expand

authority

and

amount of

money

managed

1. Research local

banks & credit unions

about checking

accounts, cost, etc.

Bob and James

10-Apr

2. Discuss with Mary

Ann, Bob assuming

responsibility to pay 1

- 2 bills

Bob, James and

Mary Ann

10-Apr

Date for this will be

determined by how Bob

manages cash

3. Bob begins paying

bills identified and

reconciling account

with Mary Ann

15-Apr

on-going - as Bob

becomes accomplished,

authority and

responsibility expands

Report to

Court

Bob and James will

develop progress

report for Mary Ann to

review and approve

Bob, James and

Mary Ann

1-Jun

report provided to John to

file with the court for

partial or full restoration of

right

APPENDIX C: RESTORATION OF RIGHTS PROCESS IN FLORIDA

Guardian Advocacy

Guardianship

Elements of the

Process

Chapter 393.12(12), Florida Statutes

Chapter 744, Florida Statutes

Suggestion of

Restoration of

Rights/Capacity

Any interested person, including the

person under guardian advocacy, may

file a Suggestion of Restoration of

Rights which must state that the person

has regained the ability to exercise

some or all of the rights that were given

to the guardian advocate. Evidentiary

support or a statement of the good faith

reason for the belief must also be

included.

Any interested person, including the

person under guardianship, may file a

Suggestion of Capacity stating that

the person is currently capable of

exercising some or all of the rights

which were removed. If the person is

not already represented by an

attorney, a request may be made for

the Court to appoint one.

Physician's Review

Evidentiary support includes, but is not

limited to, a signed statement from a

medical, psychological or psychiatric

practitioner by whom the person with a

developmental disability was evaluated

and which supports the Suggestion for

the restoration.

The Court will immediately appoint a

physician to examine the person

under guardianship and submit his

report within 20 days.

Appointment of

Attorney

Within 3 days after the filing of the

Suggestion, an attorney will be

appointed by the Court, if the person is

not already represented by counsel.

If the person under guardianship does

not have an attorney, the court shall

appoint one to represent that person.

Need for a Hearing

1. If no evidentiary support is attached

to the Suggestion of Restoration of

Rights, the Court shall immediately set

a hearing to inquire of the petitioner and

guardian advocate as to the reason that

was not provided and enter such orders

as are appropriate to secure the

required documents;

and

2. If an objection is timely filed, or if the

evidentiary support suggests that

restoration of rights is not appropriate,

the court shall set the matter for

hearing.

If an objection is timely filed, or if the

medical examination suggests that full

restoration is not appropriate, the

Court shall set the matter for hearing.

Notice of a Hearing

The person with a disability and the

person’s attorney shall be provided

notice of the hearing. The clerk of the

court shall immediately send notice of

the filing of the suggestion to the person

with a developmental disability, the

guardian advocate, the attorney for the

person with a developmental disability,

the attorney for the guardian advocate,

if any, and any other interested person

designated by the Court.

The Court shall immediately send

notice of the filing of the suggestion of

capacity to the person under

guardianship, the guardian, the

attorney for the person, if any, and

any other interested persons

designated by the Court.

Filing of Objections

Any objections to the Suggestion of

Restoration of Rights must be filed

within 20 days after service of the

notice.

Any objections to the Suggestion of

Capacity must be filed within 20 days

after service of the notice.

Order of Restoration

If no objections are filed and the court is

satisfied with the evidentiary support for

restoration, the Court shall enter an

order of restoration of rights which were

delegated to a guardian advocate and

which the person with a developmental

disability may now exercise.

At the conclusion of a hearing, the court

shall enter an order denying the

Suggestion of Restoration of Rights or

restoring all or some of the rights that

were delegated to the guardian

advocate. If only some rights are

restored to the person with a

developmental disability, the court shall

enter amended letters of guardian

advocacy.

If no objections are filed, and the

Court is satisfied with the medical

examination, the Court shall enter an

order of restoration of capacity,

restoring all or some of the rights

which were removed from the person

under guardianship. The order must

be issued within 30 days after the

medical report is filed.

At the conclusion of a hearing, the

Court shall enter an order either

denying the Suggestion of Capacity or

restoring all or some of the rights

which were removed from the person

under guardianship. If only some

rights are restored to the person, the

order must state which rights are

restored, and the guardian shall

prepare a new guardianship report

which addresses only the remaining

rights retained by the guardian.

All the footnotes..

Throughout this Manual, the term guardianship is used to refer to guardianship and guardian advocacy unless there is a difference in treatment

between the two processes.

The Florida Developmental Disabilities Council is a non-profit organization that receives its funding from the U.S. Dept. of Health and Human Services,

Administration on Intellectual and Developmental Disabilities. Its purpose is to promote innovative programs to improve the quality of life of individuals

with a disability.

Guardian Trust is an organization of Special Needs Trust Administrators established to help people with disabilities financially qualify for public

assistance programs such as Medicaid and Supplemental Security Income (SSI).

NGA Standards available from: http://guardianship.org/documents/Standards_of_Practice.pdf.

Florida Developmental Disabilities Council (2014 February 28). Restoration of Capacity Study and Work Group Report.

http://www.jennyhatchjusticeproject.org/home

Sec. 393.063(31), Fla. Stat. (2015).

American Association on Intellectual and Developmental Disabilities (2013 March 8). Retrieved from http://aaidd.org/intellectual-

disability/definition#.Vseo5OL2aM8

Centers for Disease Control and Prevention, Retrieved March 18, 2015, http://www.cdc.gov/ncbddd/autism/facts.html.

Spina Bifida Association. Retrieved January 20, 2016, http://spinabifidaassociation.org.

Cassidy, S.B. Prader-Willi Syndrome. Journal of Medical Genetics, 34 (11), 917-923. (1997).

Semple, David. Oxford Handbook of Psychiatry. Oxford Press. 143 (2005).

Lewy Body Dementia Association. Retrieved January 20, 2016, http://lbda.org

One exception is voluntary guardianship which is available to persons with capacity who choose to have a guardian of the property to manage

finances. Sec. 744.341, Fla. Stat. (2015).

Sec. 765.204(1), Fla. Stat. (2015).

Sec. 744.1012, Fla. Stat. (2015).

Sec. 744.3215(1), Fla. Stat. (2015).

Sec. 744.3215(2)(3), Fla. Stat. (2015)

Sec. 744.3215(1), Fla. Stat. (2015).

Sec. 744.3215(3), Fla. Stat. (2015).

Sec. 744.3215(2), Fla. Stat. (2015).

Sec. 744.462, Fla. Stat. (2015).

Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities. Retrieved January 20, 2016,

National Resource Center for Supported Decision-Making: http://www.supporteddecisionmaking.org.

Sec. 393.062, Fla. Stat. (2015).

Fla. Admin. Code. R. 65G-1.010(3).

Fla. Admin. Code. R. 65G-1.047.

Florida Developmental Disabilities Council. Planning Ahead. http://www.fddc.org/sites/default/files/PA_Book_final_3-5-12-1.pdf.

Sec. 744.3115, Fla. Stat. (2015).

ABA Commn. on L. Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2005).

Id.

Sec. 765.102, Fla. Stat. (2015).

Sec. 744.3115, Fla. Stat. (2015).

Id.

Sec. 765.101(8), Fla. Stat. (2015).

Compare Sec. 765.204(2), Fla. Stat. (2015) with Sec. 744.3201, Fla. Stat. (2015).

Sec. 765.401, Fla. Stat. (2015).

Eldercaring Coordination is a dispute resolution option for high conflict guardianship cases. Eldercaring Coordination is patterned after parenting

coordination. For more information, see the Association for Conflict Resolution Eldercaring Coordination Guidelines. ACR Elder Decision-Making

Section, Retrieved March 22, 2015. http://acreldersection.weekly.com/documents.html.

Radford, M. The Use of Mediation in Adult Guardianship Cases, National Guardianship Association, 2007.

Sec. 744.3675(3)(a), Fla. Stat. (2015).

Another reference to guardian advocacy is found in Chapter 394, Florida Statutes. A guardian advocate for persons with mental illness is limited to

providing consent to mental health treatment in inpatient psychiatric settings only.

Sec. 744.464(2), Fla. Stat. (2015).

Sec. 393.12(12), Fla. Stat. (2015).

Id.

Vick v. Bailey, 777 So.2d 1005 (2nd DCA 2000).

In re Guardianship of Bockmuller v. Harris, et al, 602 So.2d 608 (2nd DCA 1992).

Connell v. In re Connell, 476 So.2d 1381(1st DCA 1985).

Whitley v. Craig, 710 So. 2d 1375 (5th DCA 1998).

Cassidy, J., (2015), Restoration of Rights for Adults under Guardianship (Bifocal), Vol. 36, No.3.

Id.

755 ILCS 5/11a-20.

Mich. Comp. Laws Ann. Sec. 700.5313 (West).

http://www.disabilityrightsnc.org/publications

See Patricia M. Cavey, Realizing the Right to Counsel in Guardianship: Dispelling Guardianship Myths, 2 Marq. Elder’s Advisor 5 (2000).

Sec. 393.12(12), Fla. Stat. (2015) and Rule 5.681, Fla Prob R.

Florida Developmental Disabilities Council. (2014). Restoration of Capacity Study and Work Group Report. Tallahassee, FL.

Ramirez v. Garcia de Bretado, 547 S.W.2d 717 (Tex. App. 1977); Harris v. Johnson, 149 Ind. App. 512, 273 N.E.2d 779 (Ind. Ct. App. 1971).

Cassidy, supra note 5, at 123; Minn. Stat. Ann. § 524.5-317 (2009); Me. Rev. Stat. tit. 18-A, § 5-307(d) (2009).

Cassidy, supra note 5, at 123. These seven states are: Connecticut, Georgia, Louisiana, Missouri, North Carolina, Texas, and Virginia. Conn. Gen.

Stat. Ann. § 45a-660; Haw Ga. Code Ann. § 29-4-42; La. Code Civ. Proc. Ann. Art 4554; Mo. Ann. Stat. § 475.083; N.C. Gen. Stat. Ann. § 35A-1130;

Tex. Prob. Code Ann. § 694; Va. Code Ann. § 64.2-2012.

Cassidy, supra note 5, at 123. These eight states are: Hawaii, Illinois, Iowa, Kansas, Nevada, Ohio, Oregon, and Pennsylvania. Rev. Stat. §§ 560:5-

112; 560:5-318; Illinois St. Ch. § 5/11a-20; Iowa Code Ann. § 633.675; Kan. Stat. Ann. §59-3090- 59-3091; Nev. Rev. Stat. Ann. §§ 159.1905, 159.191;

Ohio Rev. Code Ann. § 2111.47; Or. Rev. Stat. Ann. § 125.090; 20 Pa. Cons. Stat. Ann. § 5517.

Cassidy, supra note 5, at 123. Miss. Code. Ann. § 93-13-125.

Cassidy, supra note 5. These eleven states are: Alabama, Hawaii, Idaho, Indiana, Massachusetts, Michigan, Montana, Nebraska, New Hampshire,

South Carolina, and Utah. Ala. Code § 26-2A-110; Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Idaho Code Ann. § 15-5-307; Ind. Code Ann. § 29-3-12-1;

Mass. Gen. Laws Ann. ch. 190B, § 5-311; Mich. Comp. Laws Ann. § 700.5309; Mont. Code Ann. § 72-5-325; Neb. Rev. Stat. § 30-2622- 30-2623; N.H.

Rev. Stat. Ann. § 464-A:40; S.C. Code Ann. § 62-5-306; Utah Code Ann. § 75-5-306- 75-5-307.

Cassidy, supra note 5. These four states are: Arizona, Iowa, Texas, and Wyoming. Ariz. Rev. Stat. Ann. § 14-5306- 14-5307; Iowa Code Ann. §

633.675; Tex. Prob. Code Ann. § 694; Wyo. Stat. Ann. § 3-3-1101.

Cassidy, supra note 5. Ariz. Rev. Stat. Ann. § 14-5307(C) (2012).

Cassidy, supra note 5. See Tex. Prob. Code Ann. § 694A(e) (2005).

Cassidy, supra note 5. See Iowa Code Ann. § 633.680 (1963); Wyo. Stat. Ann. § 3-3-1105 (1977).

Cassidy, supra note 5. These thirty-one states are: Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Iowa, Kansas,

Louisiana, Maryland, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode

Island, South Dakota, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Ark. Code Ann. § 28-65-401, 28-65-402; Cal. Probate

Code 1863(b); Colorado Revised Statutes Annotated §15-14-318; Conn. Gen. Stat. Ann. § 45a-660; Delaware Code Ann. tit. 12 § 3908; Fla. Stat. Ann.

§§ 744.464(3), 744.521; Ga. Code Ann. § 29-4-42; Haw. Rev. Stat. §§ 560:5-112, 560:5-318; Iowa Code Ann. § 633.675; Kan. Stat. Ann. § 59-3090- 59-

3091; La. Code Civ. Proc. Ann. Art 4554; Md. Code Ann., Est. & Trusts § 13-220; Minn. Stat. Ann. § 524.5- 317; Miss. Code. Ann. § 93-13-125; Mo.

Ann. Stat. § 475.083; Nev. Rev. Stat. Ann. §§ 159.1905, 159.191; N.J. Stat. Ann. § 3B:12-28; N.Y. Mental Hyg. Law § 81.36; N.C. Gen. Stat. Ann. §

35A-1130; Ohio Rev. Code Ann. § 2111.47; Okla. Stat. Ann. tit. 30, § 3-116; Or. Rev. Stat. Ann. § 125.090; 20 Pa. Cons. Stat. Ann. § 5517; R.I. Gen.

Laws Ann. § 33-15-18; S.D. Codified Laws § 29A-5-508- 29A-5-509; Vt. Stat. Ann. tit. 14, § 3077; Va.

Code Ann. § 64.2-2012; Wash. Rev. Code Ann. § 11.88.120; W. Va. Code Ann. § 44A-4-7; Wis. Stat. Ann. § 54.64; Wyo. Stat. Ann. § 3-3-1101.

Mary Joy Quinn & Howard S. Krooks, The Relationship Between the Guardian and the Court, 2012 Utah L. Rev. 1611, 1638 (2012).

Report, Richard Van Duizend, National Probate Court Standards, National Center for State Courts (2013).

R. Regulating Fla. Bar, Preamble.

Sec. 744.3215(1)(l), Fla. Stat. (2015).

R. Regulating Fla. Bar, 4-1.14. Client under a Disability.

R. Regulating Fla. Bar, 4-1.14. Client under a Disability. Comment.

ABA Commn. on L. Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2005).

Sec. 744.464(2)(b), Fla. Stat. (2015).

Sec. 744.464(2)(e), Fla. Stat. (2015)

Sec. 393.12(12)(a), Fla. Stat. (2015).

Sec. 744.464(5), Fla. Stat. (2015).

Sec. 744.464(2), Fla. Stat. (2015).

For a discussion on decisional capacity standards, see ABA Commn. on L. Aging & Am. Psychological Assn., Judicial Determination of Capacity of

Older Adults in Guardianship Proceedings: A Handbook for Judges. (2006).

ABA Commn. on L. Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2005).

Sec. 744.464(12), Fla. Stat. (2015).

Sec. 744.3675(3), Fla. Stat. (2015).

Id,

National Guardianship Association. Standards of Practice. http://www.guardianship.org/guardianship_standards.htm