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Guardianship Law

Guardianship Attorney West Palm Beach

Pre-Need Guardianship

Preneed guardianship is a type of an advance directive that communicates to the world who you want to be your guardian if you become mentally or physically disabled.  You can designate in advance, in writing, who you want to manage your affairs if and when you become unable to.  This document often identifies alternate proposed guardians. 

Although it may be accepted by you that the person named as Preneed Guardian is qualified to serve as your guardian, in some cases a judge may determine otherwise.  The court is looking out for your best interest and may appoint a different qualified person to be your guardian.

At the time a court decides that you are incapacitated they can approve the named Preneed Guardian and that individual will assume the role and duties of guardian and you become the ward.

Guardianship is a legal relationship between the guardian and the person who because of incapacity is no longer able to take care of his or her own affairs.

State laws require that guardianship be enacted only when less restrictive alternatives, such as power of attorney, are not a reasonable option given the specific circumstances of the case.

The Procedure for Determining Incapacity in Florida

The procedure for asking a Florida court to declare someone incapacitated is codified in Florida Statute §744.331.

A guardianship proceeding is started by filing a Petition to Determine Incapacity and Petition for Appointment of a Guardian.

Within 5 days after a Petition for Determination of Incapacity has been filed, the court will appoint an examining committee consisting of 3 people.  These three people will interview the alleged incapacitated person separately.  One of these people must be a psychiatrist or other physician. 

The statute also provides that “[e]ach member of the examining committee shall examine the person. Each examining committee member must determine the alleged incapacitated person’s ability to exercise those rights …specified in FS.744.3215.”.”

The court considers the examining committee’s findings and recommendations when determining whether a person is incapable of exercising  delegable rights.  The court must consider and find whether there is an alternative to guardianship, that will sufficiently address the problems of the incapacitated person.  If the court finds there is an alternative to guardianship then they will not assign a legal guardian.  If the court finds there is not an alternative to guardianship, a guardian will be appointed to exercise the incapacitated person’s delegable rights.

Marchman Act

The Hal S. Marchman Alcohol and Other Drug Services Act of 1993, more commonly referred to as the Marchman Act,  provides for the emergency assistance and temporary detention for individuals requiring substance abuse evaluation and treatment in the State of Florida.  The Marchman Act is a court-ordered framework to help addicted individuals support their recovery. 

The Marchman Act begins by filing a Petition for Involuntary Assessment in the county court where the impaired person lives.  The petitioner must have reason to believe and/or direct knowledge that the individual has lost self-control with substance abuse and that there is the likelihood this person has the potential to inflict harm upon themselves or others unless they get help.  In addition, it must be demonstrated that the impaired individual does not have the capacity to make rational decisions about the need for treatment.

The court may enter an Order for Involuntary Assessment of the impaired individual for a period not to exceed five days.  The findings of that assessment are reviewed by the court, which then may enter an Order for Involuntary Treatment for a period not to exceed 60 days. 

Baker Act

The Florida Mental Health Act of 1971, commonly referred to as The Baker Act, allows for involuntary institutionalization and examination of an individual.  A Baker Act proceeding can be initiated by a judge, law enforcement officer, medical doctor, or a mental health professional.  The examination may last up to 72 hours and is to determine whether an individual has a mental illness and may harm themselves or others.  

An individual, after examination might be released or have a Petition for Involuntary/ Voluntary / Inpatient/ Outpatient Treatment.

Abuses of the Baker Act

  • People who are involuntarily confined when they don’t have a mental illness and when they do not meet the basic criteria for the Baker Act.
  • Children and teenagers are confined to facilities that have not been set up for children.
  • An individual is transferred to a facility a great distance from their family and friends as a result of overcrowding.
  • A person who is unable to receive necessary medical care in a Baker Act facility or who is unable to go to appointments with their own physicians. 
  • A decline in a person’s medical condition as a result of not being allowed to take medically necessary medication while confined.
  • The person is not allowed to see or be treated by their regular psychiatrist or therapist because the therapist is not on the medical staff of the Baker Act facility.  
  • Individuals may be confined in a facility where some of the other patients are dangerous. 
  • Some confined patients are kept longer if they have really good health insurance which is paying the hospital for the inpatient stay.

Sometimes we can help in situations where the family of the confined individual is located in another state and the confined individual is located in Florida.  If the basic requirements for an involuntary confinement under Florida Law do not exist we are often able to acquire a quick release of the confined individual.

When the basic criteria for confinement is not met and there is no medical necessity for further confinement, David Pleasanton represents individuals, families and friends in challenges to and hearings related to the Florida Baker Act and Marchman Act.

Guardianship Case Results:

The information below has not been reviewed or approved by the Florida Bar. Not all results have been provided, and results provided are not necessarily representative of results obtained by the attorney in every case. Each case is different, and each case must be evaluated and handled on its own merits.

In Re: Guardianship of Ronald Bolden
Case # 00-MH-1023
Client found not to be incapacitated

Petition for Involuntary Placement: In Re: Paul Branztet
Case # MH-97-471-IY
Involuntary Placement Denied

In Re: Melchise Koon, Sr.
Case # MH-01-1139-IB
Client found not to be incapacitated

In Re: Guardianship of Felipe Guerra
Case # 01-795-PP-IB
Client’s Petition for Restoration of Limited Rights Granted

In R: Robert Larrabee
Case # 05-MH-2114
Client found not to be incapacitated

In Re: Melvin Roth
Case # 06-MH-47 Client found not to be incapacitated