Marchman Act Respondent’s Court-Appointed Lawyer in Florida
If a Marchman Act petition has been filed about someone you love, you likely have many questions at once. Does a Marchman Act respondent get a court-appointed lawyer in Florida? Yes. The respondent is the person named in the petition, and Florida law gives that person the right to counsel.
The Short Answer: Yes, the Respondent Has a Right to a Lawyer
The respondent is the adult the petition is about. The petition asks the court to review that person’s substance use impairment. Under Fla. Stat. § 397.681, a respondent has the right to counsel at every stage of a judicial proceeding on a petition for involuntary treatment. The respondent can give up that right only if the respondent is present and the court finds the waiver is knowing, intelligent, and voluntary.
The right also has a constitutional basis. In Hillsborough County v. Albrechta, a Florida appeals court held in 2003 that due process gives a Marchman respondent a constitutional right to counsel. For the full picture, read our guide to involuntary commitment for addiction.
How a Marchman Act Case Begins
A case starts when a petition is filed with the clerk of court in the county where the person is located. The clerk may not charge a filing fee for the petition, under § 397.681.
For South Florida families, that county is where your loved one is physically located, not necessarily where the family lives. In J.P. v. J.N., a Florida appeals court held that a petition filed in the wrong county did not take away the circuit court’s jurisdiction.
Once the petition is filed, under § 397.681, if the court believes that the respondent needs or desires the assistance of counsel, the court shall appoint such counsel for the respondent without regard to the respondent’s wishes. Under § 397.68151, the court must also schedule a hearing within 10 court working days unless a continuance is granted. The respondent receives a copy of the petition and the hearing notice.
Emergencies can move faster. Under Fla. Stat. § 397.6818, when the petitioner asserts that emergency circumstances exist, or the court determines an emergency exists, the court may rely solely on the petition and enter an ex parte order, which is an order based on the petition alone, without appointing an attorney. D.H. v. K.J.R. held that such an order must rest on petition facts giving a good-faith reason to believe the statutory criteria are met. That is why the first days of an emergency case can move fast.
The Respondent’s Right to Counsel
The right to counsel covers the whole case, not only the final hearing. § 397.681 says the right applies at every stage. A respondent who can afford a private lawyer can hire one. A respondent who wants counsel but cannot afford private counsel has the right to a court-appointed lawyer.
The court can appoint counsel even when the respondent does not ask for one. If the court believes the respondent needs or desires counsel, it must appoint counsel without regard to the respondent’s wishes.
Each person must also be told of this right. Under § 397.501, the person may ask the court right away for an appointed attorney if they cannot afford one.
When the Court Appoints a Lawyer for the Respondent
A respondent who cannot afford private counsel can receive a court-appointed lawyer. The court must also appoint one when it believes the respondent needs or desires counsel, even if the respondent does not want one. Eligibility depends on the facts of each case.
Once counsel is appointed, the clerk must notify the regional counsel office. Under § 397.68151, that office represents the person until the petition is dismissed, the court order expires, the person is discharged, or the court discharges the office.
Florida law gives that office primary responsibility for representing persons entitled to court-appointed counsel in civil proceedings under chapter 397, including respondents, under § 27.511. See § 27.511. The court makes the appointment decision, not the family.
What a Lawyer Does for the Respondent During the Case
A respondent’s lawyer works for the respondent. The statute says the attorney shall represent the person’s interests, regardless of who pays. Under § 397.68151, the attorney also has access to the person, witnesses, and relevant records.
At the hearing, the court hears all relevant evidence. That can include testimony from family members who know the person’s history. Under § 397.6957, testimony must be given under oath and the proceedings must be recorded. The respondent may refuse to testify.
A respondent cannot be ordered into treatment without a clinical assessment. The respondent may also request an independent assessment.
A treatment order requires proof by clear and convincing evidence. The criteria for involuntary admission appear in § 397.675.
A common mistake is assuming the lawyer will carry the family’s position to the judge. The lawyer’s duty runs to the respondent.
What the Appointment Does Not Cover: The Family Member Who Files
A relative who files is the petitioner. Under § 397.68112, an adult respondent’s petition may be filed by a spouse or legal guardian, any relative, a service provider, or an adult with direct personal knowledge of the impairment and prior treatment.
A petitioner who wants a lawyer for the petition should plan for that separately. The same section says the court may prohibit service of process fees for a petitioner found indigent, and a law enforcement agency may waive them.
Does a Marchman Act case cost money?
The clerk may not charge a fee to file the petition under § 397.681. A person receiving services must contribute toward the cost based on ability to pay, under § 397.431.
Can the respondent choose their own lawyer?
A respondent who can afford private counsel may hire one. A respondent who cannot afford one has the right to a court-appointed lawyer.
Talk With Robinson Casey About Your Loved One’s Case
If a petition has been filed about someone you love, you may be trying to understand a case you did not choose. Maybe a notice has arrived, a hearing date is coming up, or you’re weighing whether to file. You don’t have to work through the court process alone.
Robinson & Casey is a Florida law firm that limits its practice to Marchman Act petitions and guardianship matters. It serves families across South Florida and statewide.
For Miami-Dade families, see the Miami-Dade Marchman Act guide. For further reading, check missed court-ordered treatment in Florida and the Marchman Act for adults without housing.
The first consultation is free, confidential, and carries no obligation to continue. Schedule a consultation or call (561) 849-4149.