Understanding Guardianship and Retained Rights in Florida
For families seeking guardianship of a special needs adult, one of the most important considerations is whether the individual can retain certain legal rights. Florida law recognizes that many adults with disabilities can make some decisions independently while still needing assistance in other areas. As a result, courts have the ability to create limited guardianships, allowing individuals to retain as much autonomy as possible.
I’m Beryl Thompson-McClary, an Orlando Guardianship Attorney, and I help families navigate the complexities of guardianship while ensuring that individuals with disabilities maintain their rights whenever possible. If you have questions about guardianship and legal rights, call 1-888-640-2999 to schedule a consultation.
How Does Florida Law Address Retained Rights in Guardianship?
Under Florida Statute 744.3215, individuals under guardianship retain certain legal rights unless a court determines that they must be transferred to a guardian. The law prioritizes the least restrictive form of guardianship to allow individuals to retain decision-making power in areas where they are capable of making informed choices.
The court assesses the individual’s abilities and may allow them to keep rights such as:
- The right to vote
- The right to marry
- The right to determine their own residence
- The right to consent to medical treatment
- The right to make social and personal decisions
The extent to which an individual retains these rights depends on their specific circumstances and the court’s findings.
Full Guardianship vs. Limited Guardianship
Full Guardianship
- Involves transferring all legal rights to the guardian.
- Typically applies when an individual is completely unable to make independent decisions.
- The guardian controls financial, medical, and personal affairs.
Limited Guardianship
- Allows the individual to retain some decision-making rights.
- The court specifies which rights are retained and which are assigned to the guardian.
- This option provides more independence while ensuring legal protection.
Many individuals with special needs are capable of making personal choices but require help with complex financial or medical matters. Limited guardianship helps strike a balance between independence and support.
How Does the Court Decide Which Rights Are Retained?
The court follows a structured process to determine which rights a special needs adult can retain. This includes:
- Medical and Psychological Evaluations – Professionals assess the individual’s cognitive abilities and capacity for decision-making.
- Hearing and Testimony – The court reviews testimony from the individual, their family, and experts.
- Guardian’s Input – The proposed guardian may provide insight into the individual’s abilities and needs.
- Court Determination – The judge assigns guardianship responsibilities based on the evidence presented.
The goal is to only transfer rights that the individual cannot manage independently while allowing them to maintain control over other aspects of their life.
Rights That a Special Needs Adult May Retain
Even under guardianship, individuals may retain:
- Personal and Social Decisions – Choosing friends, participating in social activities, and making everyday choices.
- Residence and Living Arrangements – Some individuals can decide where they live, as long as it is safe and appropriate.
- Voting Rights – If the court does not remove this right, the individual may continue to vote.
- Marriage and Relationships – Retaining the right to marry or form personal relationships, unless otherwise restricted by the court.
- Medical Consent – If the individual is capable of understanding their medical needs, they may retain some control over treatments.
Alternatives to Guardianship for Special Needs Adults
If an individual can make many of their own decisions but still needs assistance, alternatives to guardianship may be appropriate, such as:
- Power of Attorney (POA) – Grants legal authority to a trusted individual for financial and healthcare decisions without full guardianship.
- Health Care Surrogate – Allows a designated person to make medical decisions if needed.
- Supported Decision-Making Agreements – Allows the individual to receive guidance while retaining their legal rights.
- Special Needs Trusts – Protects assets while ensuring continued eligibility for government benefits.
An Orlando Guardianship Attorney can help determine the best option for balancing legal protection with personal autonomy.
FAQs About Guardianship and Retained Rights in Florida
Can a special needs adult make their own medical decisions under guardianship?
It depends. If the court determines that they can understand and consent to medical treatment, they may retain this right. Otherwise, the guardian will make healthcare decisions.
Can a person under guardianship vote?
Yes, unless the court specifically removes this right.
How can a guardianship be modified if the individual gains more independence?
A petition can be filed with the court to modify or terminate the guardianship if the individual demonstrates an improved ability to manage their affairs.
Can a special needs adult keep control over their finances?
If the court determines that the individual can handle certain financial matters, they may be allowed to manage some assets while a guardian oversees more complex transactions.
Is limited guardianship better than full guardianship?
Limited guardianship is often preferred because it allows individuals to retain some decision-making rights while receiving assistance where needed.
Contact Orlando Attorney Beryl Thompson-McClary at 1-888-640-2999 For A Consultation
If you need to establish or modify guardianship for a special needs adult, I can guide you through the legal process while ensuring their rights are protected. Call 1-888-640-2999 today to discuss how to balance guardianship and personal independence for your loved one.
