If my loved one has to attend a placement hearing are they entitled to legal counsel?

In this video, I want to talk about the Baker Act and your right to counsel and have a lawyer appointed to represent you.

As I’ve talked about in past videos, if you’re held beyond 72 hours in the facility, which is the time they’re supposed to assess you, they’re supposed to file a petition for involuntary action placement with the court. Once that happens, there will be a hearing treated very much like a criminal case, except it’s going to be done in secrecy. Nobody else will be invited to the hearing except for you and the state’s doctors. There will be a prosecutor, a judge, a magistrate, and a public defender.

So the question is, do you have a right to a public defender? I’m going to read you a section of the Baker Act statute which talks about that. It says within one court working day after filing a petition for involuntary inpatient placement; the court shall appoint the public defender to represent the person who is the subject of the petition unless counsel otherwise represents the person. What does that mean? It means that you have a right to hire a private lawyer like me to represent you at the hearing. Should you do that, it obviously requires a certain financial commitment, and I certainly appreciate that. So why would a family even bother to hire a private counsel if they have the resources? Typically, my goal is to ensure that we don’t even get that far. I don’t want you to have to go to a placement hearing because if that happens, you’re certainly going to be held for some time from when the petition is filed with the court until the hearing is conducted, and it usually takes about five days.

Obviously, I don’t want to get that far, and I certainly don’t want you spending another four or five days sitting in a state Baker Act facility just for the hearing to be conducted. The second thing is, if you hire my firm, we will be preparing for the hearing. We’re going to be filing a petition with a court telling the court what’s been going on here, why you should be released, why you don’t meet criteria, and why the state’s Baker Act facility is abusing the Baker Act statute. If you don’t hire a private counsel before that hearing takes place, then obviously, the public defender is in all likelihood going to represent you. Does that mean that you’re not going to get a fair hearing? No. When I was a prosecutor for many years, I litigated against many fine lawyers who came out of the public defender’s office. Many of them had gone on to have very successful careers because of the excellent training they got when they were a public defender.

The problem is, if you get to a hearing, the facility has already filed to keep you. They’re already planning on keeping you, and you may be one of the 10, 15, or 20 cases that the public defender represents on that day. In all likelihood, because of the number of cases the public defender will be handling, it’s very unlikely they’re going to have inadequate time to prepare for the hearing. I doubt very much they’re going to spend a whole lot of time talking to you before the hearing; they just don’t have the time. It’s not a matter of them being bad lawyers; they’re certainly not bad lawyers and please don’t take it that way, but they don’t have the resources to get ready for these hearings when they need to. I want to be prepared if I go to the hearing for you to win. Maybe we need to present our expert who can tell the judge or the magistrate that this is what they call in the industry a BBA or a Bogus Baker Act, and the court needs to know that if they’re only hearing from the stage doctors, it’s going to be pretty hard to establish that.

You have a right to counsel. My suggestion is if you have the resources, you have somebody in your family retain private counsel. I will tell you from handling many of these cases that my case is maybe one out of ten, maybe one out of twenty cases even gets to a hearing. I don’t want to get that far down the rabbit hole but if we do, we’re going to be prepared to fight, and we’re going to be prepared to win.

So with that said, thanks for the excellent question sent to me. You have a right to counsel. If you have any questions about handling cases, feel free to reach out to us or email me at mark at baker attorneys.com or send me a message through the website.

With that said, thanks for tuning in.