Brother Discharged From Treatment, Using Again in Florida
If your brother was discharged from treatment and is using again in Florida, you may be wondering whether the law can help. Yes. Florida’s Marchman Act lets certain relatives ask a court to order assessment and treatment for an adult with a substance use impairment. Here is how that works, who can file, and what the court looks at.
Why repeated discharge and relapse matter legally
A repeated cycle of discharge and relapse matters because the court looks at whether your brother can make safe decisions right now. One bad episode is a snapshot. A pattern is stronger evidence.
Simply refusing services is not, by itself, evidence of impaired judgment. The court also asks whether he is likely to neglect himself or refuse care, or has harmed or threatened to harm himself or someone else. Fla. Stat. § 397.675 reads: “(b) Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing, able, and responsible family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another.”
The statute also says that refusing services alone does not show a lack of judgment about needing them. § 397.675 That’s why families need specific facts, not only frustration.
Families often describe missed or refused care, missing money, unsafe driving, lost housing, and overdoses or near-overdoses. Your brother’s own wishes matter. They don’t, by themselves, end the question.
What the Marchman Act covers and who can file
The Marchman Act covers adults with a substance use impairment. Under Florida law, a spouse or legal guardian, any relative, a service provider, or an adult with direct personal knowledge of the impairment can file. Fla. Stat. § 397.68112 For a brother, that means a sibling, parent, or adult child can file.
The petition must name your brother and you, state your relationship, and set out the facts behind your concern. § 397.68141 It must explain why you believe he is impaired and has lost self-control. It must also explain why you believe he has inflicted or is likely to inflict physical harm on himself or others unless the court orders services, or why his refusal of care rests on judgment so impaired by substance use that he cannot appreciate his need for care and cannot make a rational decision about that need.
You may attach a report from a qualified professional who examined him within 30 days before filing. If he was never assessed, or refused, the petition must say so. § 397.68141
The petition goes to the clerk in the county where your brother is physically located. The clerk may not charge a filing fee for it. § 397.681 Such petitions must be filed with the clerk of the court in the county where the person is located; a Florida appeals court has held that filing in the wrong county is a venue problem, not a lack of jurisdiction. In J.P. v. J.N., the court explained that filing the petition in the wrong county did not divest the circuit court in Putnam County of jurisdiction. J.P. v. J.N. (Fla. 5th DCA 2017)
Signs that point toward a petition, and what to gather now
Start with a written timeline of each admission, discharge, and relapse. A petition has to rest on specific facts, and a timeline keeps them in order.
Gather these records and notes:
- Dates of each admission and discharge, plus the name of each facility
- Incidents of overdose, threats, violence, car crashes, or missing money
- Texts, messages, or voicemails that show use or a crisis
- Hospital, medical, or police reports you already have
- Names of people who saw the behavior firsthand
Keep the log plain and factual. Write what happened, when it happened, and who saw it. Leave out guesses about what your brother intended.
Records of substance use disorder treatment are protected by federal regulation, and under 42 C.F.R. § 2.13 they may be used or disclosed only as those regulations permit, such as with the patient’s written consent or under an authorizing court order. HHS fact sheet on 42 CFR Part 2
Also write down who you would call in an emergency, and keep that list with the timeline.
How a Marchman Act case moves, step by step
A case moves from a filed petition to a hearing. A court order follows only if the court finds the criteria proved by clear and convincing evidence; even then, the court may order treatment rather than is required to.
- Petition filed. In an emergency, the court may rely only on the petition and enter an ex parte order for assessment and stabilization, without first appointing a lawyer. § 397.6818 A provider may hold him up to 72 hours for observation, unless a listed exception applies.
- Hearing set. The court schedules a hearing within 10 court working days unless it grants a continuance. He receives a copy of the petition and notice of the hearing. § 397.68151
- Hearing. He must be present unless the court finds that he knowingly, intelligently, and voluntarily waives that right, or, after proof of service, that his presence is inconsistent with his best interests or is likely to be injurious to himself or others. § 397.681
- Order. If the conditions are proved by clear and convincing evidence, the court may order treatment for up to 90 days. § 397.697
- Renewal or release. If the service provider believes he still meets the criteria, a renewal petition must be filed before the court-ordered services period ends. The court may order up to 90 more days. § 397.6975 He is released when the conditions justifying treatment no longer exist. § 397.6971
J.J.J. v. D.G. (Fla. 4th DCA 2024)
How it differs from guardianship and the Baker Act
The Marchman Act focuses on substance use. The Baker Act is a separate Florida law for mental health crises. Guardianship is a separate court process for an adult who cannot manage personal care, money, or housing.
- Marchman Act: substance use impairment, with court-ordered assessment and treatment for set time periods.
- Baker Act: mental health crises. If the main concern is psychiatric, a different path may fit.
- Guardianship: a separate court process. Limited, plenary, and emergency temporary guardianship differ in scope.
If your brother is using and also cannot manage money or housing, more than one legal tool may apply. Our guide Marchman Act or Baker Act for a brother compares the two laws in more detail.
Questions families ask before filing
Most families first ask whether the brother will learn about the petition. He will.
Will my brother know I filed?
Yes. He must receive a copy of the petition and notice of the hearing. § 397.68151
What if he promises to go back to treatment?
A promise is one fact among many. It does not erase a documented pattern of use, discharge, and relapse.
Do I need proof of every relapse?
No. Well-documented incidents are easier for a court to weigh than vague claims. The court hears relevant evidence, including testimony from family members who know his history. § 397.6957
Can I file if I live in another county?
The petition goes where your brother is located, not where you live. § 397.681 Whether your facts fit depends on the facts, so bring that question to a consultation.
Does he lose all his rights?
No. Florida’s Department of Children and Families says vulnerable adults who have capacity to consent may refuse services. Florida DCF A court order comes with defined findings and limits.
Working with Robinson Casey: consultation and next step
Robinson Casey focuses its practice on Marchman Act petitions and guardianship matters, serving families across South Florida and statewide. Richard J. Casey III, Esq. is the responsible attorney for this page.
In a consultation, we review your brother’s history, the records you have, and your goals. We also look at whether a Marchman Act petition, a guardianship matter, or another path fits. The first consultation is free, confidential, and carries no obligation to continue. If another lawyer or firm is better suited to a matter, we will say so.
If your brother keeps leaving treatment and using again, you don’t have to work out the legal path alone. Call (561) 849-4149 or request a consultation today.