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The Path to Guardianship - A Cautionary Tale

It seems almost impossible to imagine, but Ben turned eighteen this past December. For any family this is an important milestone in the journey to adulthood. For families with special needs children, however, this is a particularly thorny milestone. Once your child turns eighteen they become an adult in the eyes of the law, with all of the rights and privileges associated. I am aware of cases where higher functioning young autistic adults have been coerced into doing things like purchasing a brand new car or signing contracts and leases, often by unscrupulous salesmen who are fully aware that the person they are speaking to is clearly not competent.  The more common issue, however, is that medical professionals are no longer required to discuss your child's healthcare with you -- in fact they may be prohibited from doing so by privacy laws. This is where Guardianship comes in.

We had known for years that we would need to petition the court for guardianship of Benjamin when he became and adult, and we also knew full well how long the process should take. In early 2011, about nine months before his birthday, we began looking around for a lawyer to draw up the paperwork. We eventually connected with a fairly young attorney at a very large law firm (if you are in Central Florida, you would recognized the name of the firm), who told  us he was in the process of spinning up an entire new division there dedicated entirely to legal matters for the special needs community. He then offered to handle Ben's Guardianship case pro bono, as a part of building up this new department. We were beyond delighted, and so we dove right in and signed the papers to start the process.  After we finished answering extensive questions regarding Ben as well as both of us, our new lawyer sent us off with instructions to complete a guardianship training class that would be required by the court, and told us he would start working on the court filing. Life was good.

A few months went by with no word from the lawyer. I started to get nervous, because fall was approaching and I knew that we needed to have everything done and in place in order to get a court date as quickly as possible after Ben's birthday at the end of December. I sent a few emails, and received no response from the attorney. Clearly something was up. And then I saw an article in the newspaper about how a significant number of lawyers had been let go from Very Large Firm as part of a major restructuring. Those alarm bells that I had started to hear ringing grew into full-fledged sirens and red blinking lights.  I called the law firm, and after being transferred multiple times I was finally connected to a woman who informed me that our previous attorney was no longer with the firm, and that our case had been handed to her. If I had had any sense at all, this should have been the point where I cancelled the contract and started looking for a new attorney, but the allure of "free" kept us hanging on. Our new lawyer assured us that there was still plenty of time to get the paperwork done and filed, not to worry.  Time ticked on.

Over the course of the next two months I had several email exchanges with the paralegal assistant to our attorney, and was repeatedly assured that the court filing would be ready before Ben's birthday. Finally, in early January (several weeks after Ben's 18th birthday), I was contacted by the paralegal to set up an appointment to go over the final paperwork. Hooray!  A few weeks late, but still manageable. The day came, we were given the paperwork, and we were also informed by the attorney that it was her last day with the firm. She was literally cleaning out her desk and throwing the documents at us on her way out the door. Would you like to make any guesses as to the quality of those documents?

Yup. We immediately had questions. Several of the filings did not make logical sense. We needed some clarification on whether or not these documents were actually correct before we took them down to the courthouse, and so we were assigned to lawyer #3 at Very Large Firm. January. February. March. Despite our repeatedly contacting the lawyer, no progress was being made. It was abundantly clear that 1) Neither lawyer #2 nor lawyer #3 had ever filed a guardianship case, and 2) The fact that our case was pro bono automatically placed it at the bottom of the list of priorities. We were now several months into Ben's legal adulthood with no indication of when we might finally be able to actually file the guardianship papers, and we became increasingly worried about any random accident or incident that might turn into a huge crisis without having the guardianship in place.

By late spring I had the good fortune to attend a seminar on guardianship that was being presented by a local attorney who specializes in that area of law. His class was excellent, and he clearly knew the process inside and out. After the class was over I went up to speak to him, explaining our situation. He literally groaned, and then gave me his card and asked me to phone his office to make an appointment. A few days later I sat in his office, and gave  him the stack of paperwork from lawyer #2.  He thumbed through each document, muttering, "This is crap.... this is crap... I might be able to salvage this...  this is crap...."

Within 30 minutes he fully understood the current state of things, he had just a few more questions, and then he set an appointment for the following week when he would have the final documents ready. A week later Ben's mom and I sat in that office and signed everything, and then the documents were filed electronically with the court right from the lawyer's office. Technically speaking, he wasn't even our attorney -- he was Ben's.  We had to bring Ben into the office for the attorney to meet, and of course we had to have all of the medical documentation to verify Ben's diagnosis of autism. The petition for guardianship was filed by us, and then as Ben's attorney the lawyer stipulated that Ben did in fact require guardianship.  (Well, to be more specific, Guardian Advocacy, which is a special class of guardianship in the state of Florida specifically designed to meet the needs of autistic adults). Our background checks were completed by the Florida Department of Law Enforcement, a court date was secured, and before we knew it the case was all done. After a year of spinning our wheels with a never-ending cast of clown lawyers at Very Large Firm, the entire thing was wrapped up in a matter of weeks by an attorney who actually knew what he was doing.

The moral of the story is:  don't mess around with your special needs child.  When the time comes for creating the guardianship, find an attorney who specializes in that specific area of law and stay right on top of the process. Don't make the mistakes I did, sticking with a sub-optimal lawyer for months on end just because we had already spent so much time and energy there. A good lawyer is worth every single penny, and your adult special needs child has to have all of their legal needs covered. You do NOT want to find yourself sitting in an emergency room, frantically talking to a lawyer on the phone trying to get a judge to issue an emergency temporary guardianship just so that a doctor can talk to you about your child's treatment. Having those Letters of Guardianship really can be a matter of life or death.

If you happen to live in Central Florida and need an attorney to handle your guardianship, special needs trust, or any other legal matter related to your special needs child, I can highly recommend Frank Nisi of the Nisi Law Firm. He absolutely knows his stuff, and he will take care of your case in a timely manner with plenty of good communication about the process. I wish we had started with him, it would have saved us a year of aggravation.

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About Shmoolok

The word "shmoolok" is a mashup of the longtime computer handles for my wife and myself ("Shmooby" and "Lokheed", respectively).

I originally created this website to be a place for my family to connect, but it has since grown into something a little different.

As for me -- I am a father, a husband, a son, a software developer, and a writer. On any given day I am not sure how good I am at any of those particular things, but I do try my best.

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