What do the Baker Act, Marchman Act, and Guardianship statutes have in common, AND, how could they be used together in the same case?

Hi, everyone. It’s Mark. And welcome back. In this video, I’m gonna answer a question that was asked me recently, which is, Mark, why does your farm use the Baker Act? March for an act and guardianship?

Like, what is the reason for that specialty? What’s the connection between all of those statutes and why do you use them? So in this video, I’m going to talk about what is the sort of common theme amongst those three statutes and why we use them and how potentially all three of them might get used in the same case. We have two firms or two websites, I should say. There’s drugandalcoholattorneys.com and there’s bakeractattorneys.com.

Now under bakeractattorneys.com, the mission of that part of the firm is to help people who have been Baker active, in other words, taken custody by the state of Florida, and they are unable to now sort of get out of the constraints imposed upon them by the state. Now, a lot of these people that were helping have been illegally Baker acted. Some of them have been legally Baker acted and still want to be able to make decisions for their loved one. But that’s sort of the main focus. And that is the mission of Bakeractornys.com, which is one half of the practice the other half of our practice, which is drug and alcohol attorneys.com, the focus there is helping people who have substance use and mental illness to experience the miracle of recovery.

These are people who have substance use disorders, mental health disorders, usually together. Those two things tend to go together. And so we’re helping families. We’re empowering families so they can finally get their loved ones into treatment and keep them there long enough so they can finally experience that miracle, that miracle of recovery. And if you’ve ever seen it happen, I can tell you it is a miracle.

It really is. And it’s something special to watch over time. So what those three statues have in common is that they are potentially all forms of involuntary commitment. What do I mean by involuntary commitment? What I mean is that they are statutes that allow someone to be placed into a facility against their will.

So I’m going to sort of break it down for you and explain to you how this all sort of works. So the Baker Act, as a general rule, is a statute that allows the state of Florida to take custody of you or your loved one when you are suffering from a mental illness. And as a result of that mental illness, you’re unable to make what we would all consider sort of objectively, rational decisions. And as a result of that, you are potentially a danger to yourself or somebody else. A typical case is where somebody has tried to commit suicide.

I mean, that’s sort of your generic Baker Act. And either law enforcement initiates the Baker Act or it’s initiated by the issuance of what’s known as a professional certificate, in other words, a licensed clinical social worker, a doctorate of the emergency room. And as a result, what happens is the state basically takes custody of you. They can hold you for a period of up to 72 hours, and then after that, they have to then go and get a court order. So that’s sort of the Baker Act.

And so I don’t know the juxtaposition of that is the Marchman Act. So the Marchman Act is not primarily dealing with mental illness. It’s dealing with somebody who has a primary substance use disorder, and they may or may not have a cooccurring mental illness. As a general rule, they typically do. Those two things tend to go hand in hand.

Now that also has a section that allows the state to sort of take custody view. But as a general rule and without getting into sort of all the minutiae and minute details of these statutes, as a general rule, the Marchman Act is a statute that allows a family to go to court and get a court order to place their loved one into treatment. There’s two parts to this, and again, I’m not going to go over that. I’ve done that in other videos. But the bottom line here is the Marchman Act allows a family to get a court order to put their love on into treatment for a period of up to 90 days, which can then be repeated.

So our average client whose marchman acted they’re normally a treatment for about six months. Frankly, if a family isn’t willing to have the law on a treatment for at least three months, I’m not going to take the case. And the reason for that is that, frankly, 90 days is the absolute minimum. And even less than that, honestly, I tell the client, don’t waste your money with me and don’t waste your money on treatment. It simply is not long enough.

And I know that because the people in Marchman Act tell me it’s not enough. So that’s the Marchman Act now the guardianship statute, that’s sort of its own real special entity. So the guardianship statute was really intended to be used so that when your parents get a little older. And I know this was sort of my experience with my father and when he had signs of dementia and stroke damage. And the idea would have been if we needed to was to go into court, get a court order so I could start making medical decisions for my father, I could start controlling his finances if I needed to get access to his medical records.

That was what the guardianship statute was originally intended for at my firm. What we do is we use that statute for people who have significant mental illness. I’m talking about serious cases of anxiety, depression, schizophrenia, multiple personality disorders, eating disorders, things of that nature. In a second, I’ll talk to you about how we might use all three of these statues together, but we use it in our firm to help families whose loved one may or may not have a substance use disorder, or we may or may not be able to prove that there’s a substance use disorder, which means you can’t use the entrepreneur. But either way, what it does is it gives them really broad control.

So the Marchman Act as a great tool because it allows me to go and get a court order to have somebody picked up off the streets, which is why I’ve got two retired cops working for us. But it’s very narrow in its application. And I just put out a video talking about sort of the limitations that I now see with the Marchman Act. It’s very narrow. What I mean by that is that it’s an order for treatment.

That’s it it doesn’t give you any control over finances. It doesn’t give you any control of where the person lives. It doesn’t give you access to their medical records. None of that stuff. It’s very narrow.

And application. What the guardianship statute does when it’s used the way we use it is that it would give the Guardian, which could be could be mum, could be dad, could even be a professional Guardian, the authority to make decisions for their loved one, such as you will go to treatment, you will take your medications. I can see what’s in your medical records. So I know if you’re actually getting the treatment you need, I get to control your finances because when you do have access to money, you make really silly decisions and you don’t use it wisely. In fact, you might be using it to feed your habit.

If there’s a significant substance disorder, I don’t even like the fact that you’re getting on a plane and traveling. And every time I’ve tried to put you into treatment while you get on a plane and you run to Mexico or some other far enough away place and I can’t get you back. And so the guardianship statue is really broad in application, not quite as quick as Marchman Act, but it’s a very useful tool. And when it’s used for these cases, it’s absolutely fabulous for giving families control. So let’s talk about how those things can all sort of work together.

Okay? So as I sort of said in my last video, I talked about my concerns over the Marchman Act, especially after seven years of using it. I think it’s too limited because the cases, especially in the last two years since COVID came along. And I don’t want to get into the politics of this, but we’ve seen a significant uptake in the level of mental illness, the severity of the cases. I think the Marchman Act simply doesn’t give you enough control.

It’s not broad enough. It’s not powerful enough. And in cases where we may not have substance use or just cannot prove it, you need a hammer because this is a life or death situation, and you need much more control and our families need more control. And so that’s when we might use a guardianship. But if we have somebody where we can prove substance use and perhaps they’re living on the streets, and I can tell you we’re getting a lot of calls from mums and dads whose adult children are living on the streets.

It’s really frightening and it’s sad, but the Marchman Act is a great tool because I can go get a court order. It’s called a pickup order. It’s a bit like an arrest warrant, but it’s civil in nature. I go get a court order, send out one of my retired cops, and I can pick the person up literally off the street. And we have done it and continue to do it, put them somewhere safe for the next five to seven days.

And then we can not only continue with the Marchman Act, but while that’s all going on, we’re going into court and getting a hearing so we can get the family what’s known as an emergency temporary guardianship, a temporary guardianship court order, good for 90 days. So when you run Marchman and guardianship together, these are two fabulous tools that work really well together. Now, how does the Baker Act fit into this? Well, let me tell you a couple of different ways. The first way is, well, what happens if we don’t have enough for a March for an act?

Okay. We simply don’t have substance use or we can’t prove it. Well, if we know this mental illness and we think that the person meets criteria for a Baker Act, I can use the Baker Act. I can go into court and petition the court for a pickup order, just like I can with a Marchman Act, except now we don’t need to prove substance use. We’re dealing just with mental illness, kind of like we are with the guardianship statute.

And what that means is I can get a court order, an emergency court order from one of my retired officers to go get them with local law enforcement, put them somewhere safe. And then once that’s all going on, I’m either following my Marchment Act or I’m following my guardianship or both. And so you can see how all these things might work together. We’ve had instances where we March reenacted somebody, and the male may not have been a guardianship, and that person experienced some type of mental health break. Perhaps they became suicidal and the facility using the professional certificate went and had them Baker acted.