If your autistic teen is getting close to 18, you may be weighing two court options: a guardian under chapter 744, Florida Statutes, or a guardian advocate under section 393.12. Both put a trusted adult in a court-supervised role. They differ in how the court gets there, how much authority moves, and what the young adult keeps. This comparison sets the two side by side so you can have a focused conversation with a Florida attorney. It is general information, not legal advice for your family.
What is the basic difference?
A guardian is appointed after the court decides a person is "incapacitated." Chapter 744 defines an incapacitated person as one "judicially determined to lack the capacity to manage at least some of the property or to meet at least some of the essential health and safety requirements of the person" (s. 744.102(12)).
A guardian advocate is appointed "without an adjudication of incapacity" for a person with developmental disabilities who "lacks the decisionmaking ability to do some, but not all, of the decisionmaking tasks necessary to care for his or her person or property," or who voluntarily asks for one (s. 393.12(2)(a)). Chapter 744 itself encourages courts "to consider appointing a guardian advocate, when appropriate, as a less restrictive form of guardianship" (s. 744.3085).
Plenary and limited guardianship
Chapter 744 has two kinds of guardian. A plenary guardian exercises "all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property" (s. 744.102(9)(b)). A limited guardian exercises only the rights "specifically designated by court order" after a finding that the ward lacks capacity for "some, but not all" tasks (s. 744.102(9)(a)).
How do they compare side by side?
| Feature | Guardianship (plenary or limited) | Guardian advocate |
|---|---|---|
| Who it is for | Any adult (or minor) the court finds incapacitated | Only a person with a developmental disability (s. 393.063), such as autism |
| Incapacity finding | Required, right by right (s. 744.331(6)) | Not required |
| Medical evaluation | Examining committee of three, appointed within 5 days of the petition; one must be a psychiatrist or other physician (s. 744.331(3)) | No examining committee; the court considers reports such as the support plan and IEP (s. 393.12(6)(d)) |
| Attorney for the person | Court appoints one in every incapacity case (s. 744.331(2)) | Court appoints one within 3 days of filing (s. 393.12(5)) |
| Burden of proof | Clear and convincing evidence | Clear and convincing evidence |
| Rights kept | All rights "not specifically removed by the court" (s. 744.331(6)(e)) | All rights "except those that have been specifically granted to the guardian advocate" (s. 393.12(9)) |
| Less restrictive options first | A guardian "may not be appointed" if an alternative sufficiently addresses the problems (s. 744.331(6)(b)) | Not appointed if an advance directive or durable power of attorney sufficiently meets needs (s. 393.12(7)(a)) |
| Petitioner's own lawyer | Chapter 744 has no exemption like s. 393.12(2)(b); ask an attorney or the clerk | Not required unless the court requires it or property rights beyond representative payee are delegated (s. 393.12(2)(b)) |
| Annual reports | Guardian of the person files an annual plan; guardian of property files an annual accounting (ss. 744.367, 744.3678) | Same duties as a guardian unless the order says otherwise; accounting can be excused if the only income is Social Security and the guardian advocate is rep payee (s. 393.12(10)) |
| Restoring rights | Suggestion of capacity; court appoints a physician to examine (s. 744.464) | Suggestion of restoration of rights with supporting statement (s. 393.12(12)) |
What does the guardianship process involve?
A chapter 744 case begins with a verified petition that must state "the extent of guardianship desired, either plenary or limited," and explain "the reasons why a guardian advocate under s. 744.3085 or other alternatives to guardianship are insufficient" (s. 744.334(1)). The statute defines alternatives to guardianship as an advance directive, a durable power of attorney, a representative payee, or a trust instrument.
Within 5 days of a petition to determine incapacity, the court appoints the three-member examining committee (s. 744.331(3)). Members cannot be related to each other, the petitioner or the person, and one must have knowledge of the type of incapacity alleged. If the court finds incapacity, it must list "the specific rights that the person is incapable of exercising" (s. 744.331(6)(a)).
Guardians also face requirements that apply on appointment. Most guardians must complete "a minimum of 8 hours of instruction and training" within 4 months of appointment (s. 744.3145), and guardians seeking appointment generally must submit to a credit history investigation and level 2 background screening, which the court can waive (s. 744.3135).
Who pays the examining committee and attorney?
Under s. 744.331(7), the committee and the appointed attorney "are entitled to reasonable fees to be determined by the court," paid from the ward's property, or by the state if the ward is indigent. If the petition is dismissed, committee fees are paid as expert witness fees, and costs can be charged to a petitioner only if the court finds bad faith. Actual dollar amounts vary by county and case, so ask an attorney for an estimate.
What rights can guardianship remove?
Section 744.3215 lists rights every incapacitated person keeps, including the right "to have an annual review of the guardianship report and plan," "to be restored to capacity at the earliest possible time," "to remain as independent as possible," "to receive visitors and communicate with others" and "to privacy."
It also lists rights that an incapacity order may remove without handing them to a guardian, including the rights to marry, to vote, to personally apply for government benefits, to have a driver license, to travel and to seek or retain employment (s. 744.3215(2)). That is a key reason to ask whether a less restrictive option would work. A guardian advocate order lists the specific decisions delegated, and the young adult keeps everything else.
Decision checklist: which might fit?
Use these questions to prepare for an attorney consultation. They do not decide the answer; a court does.
- Does your young adult have a developmental disability that began before 18? If yes, guardian advocacy is available. If the disability is a different kind (for example, a later brain injury), it is not.
- Can they make some decisions with help? If they can choose daily activities, friends or work but struggle with medical consent or benefits, a guardian advocate limited to those tasks may fit.
- Would they sign documents if they understand them? A supported decision-making agreement, a health care surrogate designation or a durable power of attorney may meet the need without court. The court must consider these first in both kinds of case.
- Is there significant money or property? If an inheritance, settlement or property needs managing, ask about property powers, a trust, or a guardian of property, and about the reporting that comes with each.
- Do they want a say? A person can petition for a guardian advocate or a limited guardian themselves. Their wishes matter in court.
- Are there safety concerns no document can address? Talk these through with an attorney. A plenary guardianship is the most restrictive option and requires a finding that the person lacks capacity for all tasks.
Example only: a 17-year-old who uses speech and an AAC device, works part time, and becomes overwhelmed in medical settings might keep most rights and have a guardian advocate for medical consent and benefits. Another young adult with complex needs might need broader help. Each case depends on the evidence.
Can we start with one and change later?
Both systems allow change. A person under guardianship has the right to "continuing review of the need for restriction of his or her rights" (s. 744.3215(1)(b)), and any interested person, including the ward, can file a suggestion of capacity (s. 744.464). A person with a guardian advocate can seek restoration of some or all rights under s. 393.12(12). Courts can also add or remove powers through later orders. Ask your attorney how your circuit handles modifications.
Where should I start?
- Read our explainer on the guardian advocate and the comparison of supported decision-making vs guardianship.
- Gather documents: diagnosis reports, the current IEP, any support plan, and notes on which decisions your young adult makes alone, with help, or not yet.
- Talk with a Florida attorney. The Florida Bar Lawyer Referral Service is 1-800-342-8011. Disability Rights Florida (800-342-0823) offers information and advocacy.
- Ask the IEP team for the transfer-of-rights information Florida schools must give at least one year before 18 (s. 1003.5716(1)(d)).
Hope Center for Behavior Change does not give legal advice. Our BCBA-written ABA programs, delivered by RBTs with weekly supervision and weekly parent training, focus on practical skills, and our staff can join IEP meetings where the school allows. To ask whether our services fit your teen, contact us or call 561-337-8865 for a free consultation.