Guardianship vs. Guardian Advocacy: Understanding the Best Path for Your Loved One

In the journey of caring for a loved one with disabilities, two critical legal tools can provide necessary protection and support: guardianship and guardian advocacy. Though these terms may sound similar, understanding their differences is crucial for making informed decisions that best suit your family’s needs. Let’s explore these options to ensure your loved one’s well-being and safety.

What is Guardianship?

Guardianship is a legal process designed to protect individuals who cannot make decisions for themselves due to incapacities. It allows a guardian—often a parent or close family member—to make critical decisions on behalf of the incapacitated person. These decisions can cover personal care, medical treatment, and financial matters. Guardianship is versatile and can be tailored to the individual’s specific needs, preserving their rights wherever possible. However, it involves adjudication of incapacity, meaning the court declares the individual unable to manage their affairs, which can be a rigorous and sometimes intrusive process. If there is not a close family member to serve in this role, there is always the option of a professional. Guardianships often are viewed negatively due to news stories about celebrities like Brittany Spears, Lindsay Lohan, or Mavis Leno; or an episode of a popular series on Netflix, Dirty Money.

What is Guardian Advocacy?

Guardian advocacy is a less restrictive form of guardianship recognized in some jurisdictions, such as Florida, for individuals with developmental disabilities manifested before the age of 18. This process does not require a full adjudication of incapacity. Instead, it’s designed for those who lack the capacity to do some but not all of the tasks necessary to care for themselves or their property. Guardian advocacy is often used when the disabled person can make some decisions but needs assistance with others, making it a more targeted and less invasive approach. As a matter of fact, an applicable statute even encourages courts to use this approach “when appropriate, as a less restrictive form of guardianship.”

Key Differences Between The Two:

• Legal Process: Guardianship involves a formal declaration of incapacity by the court, while guardian advocacy might not require such a declaration, depending on the jurisdiction.
• Scope of Decision-Making: Guardianship can cover a wide range of decisions, whereas guardian advocacy might be limited to specific areas where the individual lacks capacity.
• Flexibility and Intrusiveness: Guardian advocacy is generally seen as a more flexible and less intrusive option, tailored for those with developmental disabilities who may retain some decision-making capabilities.
• Applicability: Guardianship can apply to any individual deemed incapacitated, while guardian advocacy specifically focuses on those with developmental disabilities diagnosed before adulthood, as a less restrictive option.

Which One is Right for Your Family?

Choosing between guardianship and guardian advocacy depends on your loved one’s unique situation. Consider their level of incapacity, the type of decisions they need help with, and the legal options available in your state. It’s also vital to reflect on the long-term implications of these arrangements, as they can significantly impact your loved one’s rights and autonomy.

If you’re navigating these complex decisions, The Law Offices of Mark F. Moss is here to help. Our team understands the nuances of guardianship and guardian advocacy, and we’re committed to guiding families through these challenging times with compassion and expertise.

Ready to explore the best path for your loved one? Book a complimentary consultation with us today. Together, we can ensure your loved one receives the protection and support they deserve, tailored to their unique needs and circumstances.