Can I file a Marchman Act while someone is being held under a Baker Act?

We get a lot of calls from people who have been baker-acted, and now a family member wants to use the Marchman Act, which is Florida’s involuntary commitment statute for substance use and current crime or mental illness, to put the person into treatment. As a general rule, I tell them that it can’t be done, and here’s why:

The Baker Act, chapter 394, the Marchman Act, chapter 397, is emergency stabilization statute. If your loved one has been baker-acted, it means that the state has stepped in and taken control of their lives. Initially, that’s only supposed to be up to 72 hours, but it can be extended. The facility can file a petition for involuntary placement. In theory, your loved one could be held for up to six months. Right now, the state has complete control of the situation. If you get a Marchman Act court order, that order is a treatment-specific statute. Meaning your loved one has been ordered into treatment. It doesn’t tell the Baker Act facility that they should release the person, and it doesn’t tell them anything about what to do with the person. In theory, your loved ones are being held at a Baker Act facility. You get a court order that tells your loved one, who’s now being held at the facility, that they will go to treatment. The problem is, they can’t go anywhere until the facility decides to release them or a judge orders them to be released. So as a general rule, if your loved one has been baker-acted, and you want to get your loved one into treatment, there are only two ways for that to happen. One is when the state agrees for them to be on a bed to bed transfer, but the problem with that is that once they’re transferred, they’re no longer under a court order, they’re no longer in the control of the state, and are free to leave and do what they want. If you want to get your loved one into treatment and keep them there while they have been baker-acted, it is best to do that through a Guardianship. The guardianship allows a family member or somebody that the family designates to step back into the state’s shoes and control the situation. Because right now, the state has control, and you as the family member —zero. The guardianship would allow you to take control of situations and make decisions for your loved one, one of which would include sending them to treatment.

You know, the favorite two words we learned in law school is “It depends,” and I say that because there are exceptions to this rule. Are there times when I will file a Marchman Act when someone’s been baker acted? Yes. I’m reasonably certain that the Baker Act facility will respect and recognize the Marchman Act court order; they’re not going to abuse the Baker Act statute and look to keep the person. I know they’re going to stabilize them, and then they’re looking to release them. They’re willing to comply with the Marchman Act order and agree to release them to the facility that we’ve designated and which the judges ordered in the treatment or assessment order, then yes, I can file a Marchman Act. At the same time, there’s a Baker Act case pending. But as a general rule, the answer to the question of can I use the Marchman Act when there’s a Baker Act is no.

With that said, thanks once again for tuning in. Stay safe and be well!