Developing
Abilities and
Restoring Rights
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 Developmental Disabilities.
A Guide for Supporting
Persons with Disabilities
(Part of the Developing Abilities and Restoring Rights Series)
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Developing
Abilities and
Restoring Rights
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.
A Manual For
Legal Professionals
(Part of the Developing Abilities and Restoring Rights Series)
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Copyright © 2016 Florida Developmental Disabilities Council, Inc.
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.
2016LegalManual_cjm.indd 2 3/21/16 12:00 PM
Karen Campbell, Esq.
Executive Director
Ofce 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
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
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 Ofce
Tallahassee, Florida
Thank you to the following contributors who provided expertise, administrative and
nancial support to the review and development of the Developing Abilities and
Restoring Rights publications:
PROJECT TEAM
ADVISORY COMMITTEE MEMBERS
Acknowledgements
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 Ofce of Pamela G. Martini, PLLC
Orlando, Florida
Casey O’Halloran
Self-advocate
North Ft. Myers, Florida
(continued)
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ADVISORY COMMITTEE MEMBERS (cont.)
Twyla Sketchley, B.C.S.
Sketchley Law Firm
Tallahassee, Florida
The Honorable Don Sirmons
Retired Circuit Court Judge
14
th
Judicial Circuit
Lynn Haven, Florida
Wynter Solomon-Cuthbert
Court Program Specialist – Guardianship
9th Judicial Circuit Court of Florida
Orlando, Florida
Florida Developmental Disabilities Council, Inc.
Community Living and Support Coordination Task Force
Tallahassee, Florida
SPONSORS
Guardian Trust
Travis Finchum, Esq.
Trustee, Guardian Trust
Clearwater, Florida
Anne Swerlick, Esq.
Deputy Director
Florida Legal Services
Tallahassee, Florida
Erica Wood
Assistant Director
ABA Commission on Law and Aging
Washington, D.C.
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Preface
The Florida Developmental Disabilities Council (FDDC) is a non-prot 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.
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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
Table of Contents
1
1
3
3
6
7
7
8
9
11
11
12
13
15
15
15
16
17
18
18
19
20
20
21
21
22
23
24
24
24
25
25
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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
27
27
27
27
28
28
29
30
31
32
32
32
33
34
34
35
35
36
36
37
39
39
40
41
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Developing Abilities And Restoring Rights: A Legal Manual 1
A. Overview of Materials
Persons with disabilities may be placed under guardianship
1
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, specically, attorneys, judges,
examiners and guardians. This manual is part of an educational initiative sponsored by the Florida
Developmental Disabilities Council
2
and the Guardian Trust.
3
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 specically 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.
Section One: Introduction
1
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.
2
The Florida Developmental Disabilities Council is a non-prot 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.
3
Guardian Trust is an organization of Special Needs Trust Administrators established to help people with disabilities nancially qualify for public
assistance programs such as Medicaid and Supplemental Security Income (SSI).
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2 Developing Abilities And Restoring Rights: A Legal Manual
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:
P Attorneys interested in representing people with disabilities will nd 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.
P Judges will nd 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.
P Guardians will nd a discussion of their statutory responsibility to assist the
person under guardianship in regaining capacity.
P Examiners (physicians) appointed to evaluate the individual will nd 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 signicant 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, specic 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.
4
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
4
NGA Standards available from: http://guardianship.org/documents/Standards_of_Practice.pdf.
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Developing Abilities And Restoring Rights: A Legal Manual 3
statute) to facilitate the individual’s gaining or regaining functional capacity and his or her
ability to seek restoration.
5
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 ndings revealed
that guardians and people under guardianship are not specically 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.
6
B. Overview Of Disabilities
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 dening disabilities vary signicantly. For federal purposes, a
developmental disability may be any signicant physical or mental impairment that occurs before
the age of twenty-two. In Florida, a developmental disability is dened as one of ve disorders or
syndromes: intellectual disability, cerebral palsy, autism, spina bida 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 indenitely.
7
General descriptions of Florida’s ve
developmental disabilities are:
a. Intellectual Disability. An intellectual disability is characterized by signicant 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.
5
Florida Developmental Disabilities Council (2014 February 28). Restoration of Capacity Study and Work Group Report.
6
http://www.jennyhatchjusticeproject.org/home
7
Sec. 393.063(31), Fla. Stat. (2015).
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4 Developing Abilities And Restoring Rights: A Legal Manual
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.
8
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-decit/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 difculties.
c. Autism. Autism is more commonly referred to as “Autism Spectrum Disorder” (ASD), a
developmental disability that can cause signicant 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
specied (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
8
American Association on Intellectual and Developmental Disabilities (2013 March 8). Retrieved from http://aaidd.org/intellectual-disability/
denition#.Vseo5OL2aM8
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Developing Abilities And Restoring Rights: A Legal Manual 5
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.
9
Characteristics of autism may include:
• avoidance of or not paying attention to others,
• difculty relating to other people,
• difculty 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 Bida. Spina Bida literally means “split spine” and is dened 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 bida (but that does not always prevent
the disorder). Additionally, legal professionals should be aware that children of Vietnam
veterans who have spina bida may be eligible to receive a special benet under the Agent
Orange Benets Act.
Spina bida does not get worse over time; however, secondary problems can worsen and
require intensive management. Some of the health problems for people with spina bida
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 bida 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 bida have average
intelligence, there are some learning disabilities and cognitive impairments that can be
associated with hydrocephalus.
10
9
Centers for Disease Control and Prevention, Retrieved March 18, 2015, http://www.cdc.gov/ncbddd/autism/facts.html.
10
Spina Bida Association. Retrieved January 20, 2016, http://spinabidaassociation.org.
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6 Developing Abilities And Restoring Rights: A Legal Manual
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 specic 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 difculties 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 “oppy babies” and may experience feeding and swallowing
difculties.
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 difculties may emerge between 3 and 5 years of age and include the following:
• temper tantrums,
• stubbornness, and
• acts of violence.
11
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.
11
Cassidy, S.B. Prader-Willi Syndrome. Journal of Medical Genetics, 34 (11), 917-923. (1997).
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Developing Abilities And Restoring Rights: A Legal Manual 7
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 specic 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.
12
• Diffuse Lewy Body dementia is also a progressive neurological disorder. The condition
is sometimes associated with Parkinson’s disease. It may involve difculty with abstract
thinking, short-term memory and cognition. Another common symptom is recurring
hallucinations.
13
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
12
Semple, David. Oxford Handbook of Psychiatry. Oxford Press. 143 (2005).
13
Lewy Body Dementia Association. Retrieved January 20, 2016, http://lbda.org
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8 Developing Abilities And Restoring Rights: A Legal Manual
14
One exception is voluntary guardianship which is available to persons with capacity who choose to have a guardian of the property to manage
nances. Sec. 744.341, Fla. Stat. (2015).
15
Sec. 765.204(1), Fla. Stat. (2015).
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 denition.
However, someone who experiences the exact same circumstances, but is over the age of 18
would be considered to have an acquired disability.
C. Common Misconceptions Surrounding Disabilities
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.
14
In fact, incapacity cannot be
inferred from a person’s intellectual disability.
15
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 condentiality. This rst vignette demonstrates
common misconceptions some people may make about persons with disabilities.
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Developing Abilities And Restoring Rights: A Legal Manual 9
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.
D. The Dignity of Risk
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.
16
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.
16
Sec. 744.1012, Fla. Stat. (2015).
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10 Developing Abilities And Restoring Rights: A Legal Manual
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Developing Abilities And Restoring Rights: A Legal Manual 11
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.
A. Civil Rights
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.
17
Other civil rights set forth in the guardianship statute can be
removed only after a judicial process determining an individual’s legal incapacity.
18
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 qualied 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 nancial, physical and mental
capabilities;
7. To be properly educated;
8. To receive prudent nancial 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;
Section Two:
Options And Strategies
17
Sec. 744.3215(1), Fla. Stat. (2015).
18
Sec. 744.3215(2)(3), Fla. Stat. (2015)
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12 Developing Abilities And Restoring Rights: A Legal Manual
13. To receive visitors and communicate with others;
14. To have notice of all proceedings related to guardianship; and
15. To have privacy.
19
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 benets;
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.
20
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.
21
B. Less Restrictive Alternatives to Guardianship
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.
19
Sec. 744.3215(1), Fla. Stat. (2015).
20
Sec. 744.3215(3), Fla. Stat. (2015).
21
Sec. 744.3215(2), Fla. Stat. (2015).
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Developing Abilities And Restoring Rights: A Legal Manual 13
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.
22
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 benets, 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:
23
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.
24
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.”
25
22
Sec. 744.462, Fla. Stat. (2015).
23
Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities. Retrieved January 20, 2016,
24
National Resource Center for Supported Decision-Making: http://www.supporteddecisionmaking.org.
25
Sec. 393.062, Fla. Stat. (2015).
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14 Developing Abilities And Restoring Rights: A Legal Manual
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.”
26
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.
27
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.
28
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 nd 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 nances,
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 signicant 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 nancial 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.
26
Fla. Admin. Code. R. 65G-1.010(3).
27
Fla. Admin. Code. R. 65G-1.047.
28
Florida Developmental Disabilities Council. Planning Ahead. http://www.fddc.org/sites/default/les/PA_Book_nal_3-5-12-1.pdf.
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Developing Abilities And Restoring Rights: A Legal Manual 15
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 benet for persons the Social Security
Administration deems incapable of appropriately managing their social security benets.
The Representative Payee must be authorized to act by Social Security and must submit an
annual report. If Social Security benets is the only income received by the person and the
guardian is the Representative Payee, then an annual accounting does not have to be led. Not
having to le an annual accounting can save guardianship and attorney fees in some cases.
4. Powers of Attorney
Because powers of attorney are exible, they can be drafted to address a person’s specic needs.
Powers of attorney can be used to handle nancial transactions and other specied 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.
29
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.
30
Generally, the capacity to execute a contract or
power of attorney involves the ability to understand the nature and effect of the action.
31
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 difcult 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 specied 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.
29
Sec. 744.3115, Fla. Stat. (2015).
30
ABA Commn. on L. Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2005).
31
Id.
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16 Developing Abilities And Restoring Rights: A Legal Manual
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 led a Suggestion of Capacity because
a lesser restrictive alternative was available. The examiner documented
continuing decits 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.
32
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.
33
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.
34
The standard
of capacity needed to appoint a health care surrogate is the ability to communicate a willful and
knowing health care decision.
35
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.
36
32
Sec. 765.102, Fla. Stat. (2015).
33
Sec. 744.3115, Fla. Stat. (2015).
34
Id.
35
Sec. 765.101(8), Fla. Stat. (2015).
36
Compare Sec. 765.204(2), Fla. Stat. (2015) with Sec. 744.3201, Fla. Stat. (2015).
Strategies to Avoid, Limit or Replace Plenary Guardianship
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Developing Abilities And Restoring Rights: A Legal Manual 17
37
Sec. 765.401, Fla. Stat. (2015).
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
articial 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:
37
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
benet eligibility should be taken when drafting trusts for persons with a disability. Trusts are
similar to guardianship in that:
• a trustee acts as a duciary;
• the court can be called upon to provide oversight; and
• civil and criminal penalties exist for breach of trust.
Strategies to Avoid, Limit or Replace Plenary Guardianship
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18 Developing Abilities And Restoring Rights: A Legal Manual
C. Strategies to Avoid, Limit or Replace Plenary Guardianship
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 conict 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
conict 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.
38
Attorneys and judges should look for opportunities to refer conicts 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 conict 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
• condentiality and privacy in mediation.
39
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.
38
Eldercaring Coordination is a dispute resolution option for high conict guardianship cases. Eldercaring Coordination is patterned after parenting
coordination. For more information, see the Association for Conict Resolution Eldercaring Coordination Guidelines. ACR Elder Decision-Making
Section, Retrieved March 22, 2015. http://acreldersection.weekly.com/documents.html.
39
Radford, M. The Use of Mediation in Adult Guardianship Cases, National Guardianship Association, 2007.
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Developing Abilities And Restoring Rights: A Legal Manual 19
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 ling 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 signicant 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.
40
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 nances 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 nances
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 nances 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, modied 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 nances. The judge
restored several rights including the right to manage property.
40
Sec. 744.3675(3)(a), Fla. Stat. (2015).
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20 Developing Abilities And Restoring Rights: A Legal Manual
3. Limited Guardianship
In 1989, the concept of the “limited guardian” was instituted for the rst time in Florida. A limited
guardian is a person who has been appointed by the court to exercise the legal rights and powers
specically designated by a court. The court must nd 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
nds 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 exibility to tailor a guardianship to meet the specic
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 ve developmental
disabilities dened by Chapter 393, Florida Statutes.
41
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 benets. 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 dened in Chapter 744,
Florida Statutes.
41
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.
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Developing Abilities And Restoring Rights: A Legal Manual 21
Section Three:
Restoring Rights
A. Guardianship and Guardian Advocacy Restoration Processes
Under the Uniform Guardian and Protective Proceedings Act (UGAPPA), guardians have an
afrmative 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-dened 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 ling of a
Suggestion of Capacity.
42
Any interested party, including the individual under guardianship, may
le 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 ling 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 led from any interested persons and the judge is
satised 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 led, 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.
43
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.
44
42
Sec. 744.464(2), Fla. Stat. (2015).
43
Sec. 393.12(12), Fla. Stat. (2015).
44
Id.
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22 Developing Abilities And Restoring Rights: A Legal Manual
45
Vick v. Bailey, 777 So.2d 1005 (2nd DCA 2000).
46
In re Guardianship of Bockmuller v. Harris, et al, 602 So.2d 608 (2nd DCA 1992).
47
Connell v. In re Connell, 476 So.2d 1381(1st DCA 1985).
48
Whitley v. Craig, 710 So. 2d 1375 (5th DCA 1998).
Upon the ling 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.
B. Florida Case Law
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 conict of interest when an attorney represented a person
under guardianship and other multiple parties all of whom were interested in seeking
restoration of rights.
45
• 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.
46
• 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.
47
• A guardian and daughter of the person under guardianship sought revocation of a will
executed prior to the person’s incapacity alleging the undue inuence 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.
48
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Developing Abilities And Restoring Rights: A Legal Manual 23
C. National Case Law
A comprehensive analysis of restoration case law across the country provides insight into
restoration in practice and judicial treatment of petitions for restoration.
49
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.
50
From the case law, it appears that the great majority of petitions for restoration are led by older
persons and persons with mental illness.
51
Very few petitions for restoration are led 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
led 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.
52
Although almost all states permit the person under guardianship or any interested party to petition
for restoration, in seventy-ve percent of the cases the person led the petition, either pro se or
with counsel.
53
In about ten percent of cases, a family member or friend led the petition on behalf
of the person.
54
In a smaller number of cases, the guardian was the petitioner.
55
The case law show that courts rely most heavily on an evaluating physician’s report in making
determinations as to capacity and restoration.
56
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 testies at trial, courts rely heavily on the individual’s demeanor and ability to
correctly answer questions. Where the individual testies 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 veried
petition signed by the person under guardianship and the guardian which indicates that the person
has regained capacity.
57
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.
49
Cassidy, J., (2015), Restoration of Rights for Adults under Guardianship (Bifocal), Vol. 36, No.3.
50
Id.
51
Id.
52
Id.
53
Id.
54
Id.
55
Id.
56
Id.
57
755 ILCS 5/11a-20.
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24 Developing Abilities And Restoring Rights: A Legal Manual
Right to Contract
Michigan has also signicantly 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.
58
Statutory changes outlined here are designed to increase the self-determination of individuals
either by raising the bar for imposing guardianship in the rst 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.
59
D. General Barriers to Restoration
Every person under guardianship has the right to restoration should he or she regain capacity
sufcient 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-specic nature of guardianship law, the procedural process,
the court’s duties, and the guardian’s responsibilities vary signicantly 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.
60
Once an individual loses the right to contract, it may be difcult
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.
61
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.
62
58
Mich. Comp. Laws Ann. Sec. 700.5313 (West).
59
http://www.disabilityrightsnc.org/publications
60
See Patricia M. Cavey, Realizing the Right to Counsel in Guardianship: Dispelling Guardianship Myths, 2 Marq. Elder’s Advisor 5 (2000).
61
Sec. 393.12(12), Fla. Stat. (2015) and Rule 5.681, Fla Prob R.
62
Florida Developmental Disabilities Council. (2014). Restoration of Capacity Study and Work Group Report. Tallahassee, FL.
2016LegalManual_cjm.indd 24 3/21/16 12:00 PM
Developing Abilities And Restoring Rights: A Legal Manual 25
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 nancial 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 nancial affairs such that
guardianship is no longer necessary.
63
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 dene an evidentiary standard, two states require the relatively low standard
of prima facie evidence,
64
seven states use a preponderance of the evidence standard,
65
and
eight states use the higher standard of clear and convincing evidence.
66
Mississippi requires
“such proof as the chancellor may deem sufcient.”
67
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 codied an
evidentiary standard, there is little guidance for courts to decide the level of evidence necessary to
show that the person has regained capacity sufcient to manage his or her affairs.
Another state-specic barrier is moratorium periods on ling 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
63
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).
64
Cassidy, supra note 5, at 123; Minn. Stat. Ann. § 524.5-317 (2009); Me. Rev. Stat. tit. 18-A, § 5-307(d) (2009).
65
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.
66
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.
67
Cassidy, supra note 5, at 123. Miss. Code. Ann. § 93-13-125.
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26 Developing Abilities And Restoring Rights: A Legal Manual
the order may not be led without special leave, generally lasting for no longer than one year.
68
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 led, regardless of what the original order says.
69
Arizona precludes an
interested person, other than the guardian or the person under guardianship from ling such a
petition within one year of the order adjudicating incapacity unless the court believes that the
individual is no longer incapacitated.
70
Texas expands the one-year period to allow anyone to
le the restoration petition.
71
Iowa and Wyoming preclude the ling of any petition for termination
within six months of the denial of a former petition for termination.
72
In states that limit the time in
which a petition for restoration can be led, 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 ling a formal application.
73
In these
states, the judicial process is less accessible because the individual may need to secure counsel to
le a petition, and the nancial cost and time may deter interested parties from taking action.
74
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.
75
Only three states, Connecticut, Missouri, and New
Mexico, require the court to periodically analyze whether the individual’s circumstances have
changed sufciently 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.
68
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.
69
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.
70
Cassidy, supra note 5. Ariz. Rev. Stat. Ann. § 14-5307(C) (2012).
71
Cassidy, supra note 5. See Tex. Prob. Code Ann. § 694A(e) (2005).
72
Cassidy, supra note 5. See Iowa Code Ann. § 633.680 (1963); Wyo. Stat. Ann. § 3-3-1105 (1977).
73
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. Codied 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.
74
Mary Joy Quinn & Howard S. Krooks, The Relationship Between the Guardian and the Court, 2012 Utah L. Rev. 1611, 1638 (2012).
75
Report, Richard Van Duizend, National Probate Court Standards, National Center for State Courts (2013).
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Developing Abilities And Restoring Rights: A Legal Manual 27
Section Four:
Best Practices For
Guardianship Professionals
A. Attorneys
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 ofcer of the court and has an ethical responsibility to address injustice in the legal
process.
76
An 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
benet the person under guardianship.
1. Right to Counsel
Persons under guardianship have an ongoing right to counsel throughout the guardianship.
77
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.
78
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.
76
R. Regulating Fla. Bar, Preamble.
77
Sec. 744.3215(1)(l), Fla. Stat. (2015).
78
R. Regulating Fla. Bar, 4-1.14. Client under a Disability.
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28 Developing Abilities And Restoring Rights: A Legal Manual
… 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.
79
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 ofces as
accommodating as possible. Many times, people with intellectual disabilities have accompanying
physical disabilities that may affect their gait, hearing or eyesight. Assess your ofce environment.
• Is the lighting supportive of reading?
• Are your written materials ADA compliant?
• Are the acoustics in the ofce suitable for someone with hearing impairments? (For
example, is there background noise that could interfere with conversations?)
• Is your ofce 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 ofce?
• 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 condential communication or seek the consent of the person under guardianship to
communicate with others.
79
R. Regulating Fla. Bar, 4-1.14. Client under a Disability. Comment.
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Developing Abilities And Restoring Rights: A Legal Manual 29
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 sufcient evidence of capacity with respect to those rights to support restoration?
• Why was the guardianship led?
• 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 benet 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.
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30 Developing Abilities And Restoring Rights: A Legal Manual
Do not disregard areas of decits or impairments the person may have. Address any decits
directly and prepare a credible response for the court of how, despite the decits 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.
80
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.
80
ABA Commn. on L. Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2005).
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Developing Abilities And Restoring Rights: A Legal Manual 31
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 sufcient 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
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32 Developing Abilities And Restoring Rights: A Legal Manual
to suggest guardianship alternatives or a Progressive Rights Restoration Plan as options to the
denial of restoration rights.
B. Judges
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 ofce 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 le 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 led in the county where the guardianship case is pending.
Once the suggestion of capacity is led, the statute is clear that the court must immediately
appoint a physician.
81
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 ling of the Suggestion
of Capacity.
82
The better practice is to ensure the person is represented by counsel as early
as possible in the proceedings. Notably, the ling 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 ling of the Suggestion of Restoration of Rights.
83
Additionally, the person may request to substitute his or her own attorney for the attorney
appointed by the court.
84
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 ling of the Suggestion
of Capacity.
85
Some courts use the guardianship examining committee registry as a source for
physician evaluators. In rural areas, this may present a potential conict 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 nd physician evaluators are area medical schools, clinics and hospitals.
Medical directors at skilled nursing facilities may be a good resource because those doctors are
81
Sec. 744.464(2)(b), Fla. Stat. (2015).
82
Sec. 744.464(2)(e), Fla. Stat. (2015)
83
Sec. 393.12(12)(a), Fla. Stat. (2015).
84
Sec. 744.464(5), Fla. Stat. (2015).
85
Sec. 744.464(2), Fla. Stat. (2015).
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Developing Abilities And Restoring Rights: A Legal Manual 33
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.
86
3. Additional Considerations
Assess if evidentiary information is sufcient. 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 insufcient 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 afrmative 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 specic mandates to instruct guardians by detailing their
scope of authority. Section 744.344, Fla. Stat., afrms, “The order shall state the specic powers
and duties of the guardian.” A slight modication 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 renement of rights or rights restored include:
87
86
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).
87
ABA Commn. on L. Aging & Am. Psychological Assn., Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (2005).
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34 Developing Abilities And Restoring Rights: A Legal Manual
• 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.
88
The physician must submit his or her report within twenty (20) days
after the court’s appointment. If the judge is satised that the examination establishes by the
preponderance of the evidence that restoration is appropriate and there are no timely led
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 led objections or the court is not satised 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 nding 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 le a new
guardianship report, presumably a new plan, within sixty (60) days of the entry of the order.
C. Guardians
Guardians have an afrmative 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.
89
The annual
plan must name any rights the guardian believes the person under guardianship has developed
the ability to exercise.
90
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.
88
Sec. 744.464(12), Fla. Stat. (2015).
89
Sec. 744.3675(3), Fla. Stat. (2015).
90
Id,
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Developing Abilities And Restoring Rights: A Legal Manual 35
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:
91
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 nancial 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 fulll 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.
D. Physician Examiners
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 specic 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, benets 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
91
National Guardianship Association. Standards of Practice. http://www.guardianship.org/guardianship_standards.htm
2016LegalManual_cjm.indd 35 3/21/16 12:00 PM
36 Developing Abilities And Restoring Rights: A Legal Manual
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 specic 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 specic 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 Identication of Dementia
• Geriatric Depression Scale and Single-Item Depression Indicator
• Functional Activities Questionnaire
• Cognitive Incapacity and Problem Behaviors Assessment
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Developing Abilities And Restoring Rights: A Legal Manual 37
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.
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38 Developing Abilities And Restoring Rights: A Legal Manual
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Developing Abilities And Restoring Rights: A Legal Manual 39
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
1
2
3
4
5
Goal #2
1
2
3
4
Goal #3
1
2
3
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40 Developing Abilities And Restoring Rights: A Legal Manual
APPENDIX B: PROGRESSIVE RIGHTS RESTORATION PLAN (EXAMPLE)
Right
to be
Restored
Goals Steps Who Will Assist
Target
Date for
Completion
Comments
R
I
G
H
T
T
O
M
A
N
A
G
E
M
O
N
E
Y
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 identied 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 le with the court for
partial or full restoration
of right
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Developing Abilities And Restoring Rights: A Legal Manual 41
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
le 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 le
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 ling 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 led, 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 led, or if the
medical examination suggests that
full restoration is not appropriate, the
Court shall set the matter for hearing.
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42 Developing Abilities And Restoring Rights: A Legal Manual
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 ling 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 ling 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 led
within 20 days after service of the
notice.
Any objections to the Suggestion of
Capacity must be led within 20 days
after service of the notice.
Order of Restoration
If no objections are led and the court
is satised 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.
OR
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 led, and the
Court is satised 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 led.
OR
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.
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