Marchman Act Attorney in Florida: Is a Lawyer Provided?

Learning that a Marchman Act petition names someone you love can leave you scrambling for answers. One of your first questions may be whether that person gets a lawyer. Whether this applies depends on the facts of each family’s situation.

The Short Answer: Yes, the Person Named in the Petition Has a Right to a Lawyer

The person named in the petition is called the respondent. Florida law says a respondent “has the right to counsel at every stage of a judicial proceeding” on a petition for involuntary treatment for substance abuse impairment (Fla. Stat. § 397.681). The respondent can give up that right only if the respondent is present and the court finds the waiver is knowing, intelligent, and voluntary. It is separate from any treatment the court may order. The sections below explain how a lawyer is provided and what that lawyer does.

What a Marchman Act Petition Is and Who Can File One

A Marchman Act petition is a formal request to a Florida court. It asks the court to order an assessment and possibly treatment for a person with substance abuse impairment. The law sits in Chapter 397 of the Florida Statutes. Our Chapter 397 explainer covers the full statute.

The petition must give the reasons the filer believes the person is impaired, has lost self-control with respect to substance use, and either has inflicted or is likely to inflict physical harm on himself or herself or others unless the court orders services, or refuses care because impaired judgment leaves them unable to appreciate their need for care (Fla. Stat. § 397.68141). For an adult, the petition may be filed by a spouse or legal guardian, any relative, a service provider, or an adult who has direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment (Fla. Stat. § 397.68112). The Florida Department of Children and Families also explains who may start the process.

Being named does not mean the court has decided anything. The court must hold a hearing within 10 court working days unless it grants a continuance (Fla. Stat. § 397.68151).

When the Court Appoints a Lawyer for the Person Named in the Petition

If the respondent cannot afford a private lawyer, the court can appoint one. A respondent who wants counsel and cannot afford it has the right to court-appointed counsel (Fla. Stat. § 397.681). The Second District has held that because due process is involved, a respondent has a constitutional right to counsel in Marchman Act proceedings (Hillsborough County v. Albrechta).

In many cases, the appointed lawyer comes from the office of criminal conflict and civil regional counsel. That office has primary responsibility for representing people entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law in chapter 397 proceedings (Fla. Stat. § 27.511). When counsel is appointed, the clerk must immediately notify that office, which represents the person until the petition is dismissed, the court order expires, the person is discharged from involuntary treatment services, or the court otherwise discharges the office (Fla. Stat. § 397.68151).

Keep one point in mind. The appointed lawyer represents the interests of the person named in the petition. The lawyer does not represent the family member who filed. Check the appointment timing with the clerk of court in the county where your loved one is located.

Hiring a Private Lawyer for the Person Named in the Petition

The person named in the petition can also hire a private lawyer. That lawyer works for the respondent. Some people want a lawyer involved before the first hearing. Others want the same lawyer through the whole case.

A lawyer representing the respondent has access to the person, witnesses, and records relevant to the case. That access applies no matter who pays the lawyer (Fla. Stat. § 397.68151).

Family members who want advice for themselves need their own lawyer. The respondent’s lawyer does not advise the relative who filed the petition or who plans to testify. Keep those roles separate from the start.

What the Lawyer for the Person Named in the Petition Does

The respondent’s lawyer protects the person’s rights from the first filing through the hearing. The lawyer reviews the petition and checks whether its factual claims support the statutory criteria. A Florida appeals court has held that an ex parte order must rest on petition facts that give a good-faith reason to believe the criteria are met (D.H. v. K.J.R.).

At the hearing, the respondent must be present unless a valid waiver is made or the court finds presence is inconsistent with the respondent’s best interests or likely to be injurious. The court hears all relevant evidence, including testimony from family members who know the respondent’s history. The court may also order drug tests (Fla. Stat. § 397.6957).

The lawyer also checks the assessment requirement. A respondent may not be ordered into treatment without a clinical assessment unless he or she is present in court and expressly waives it, and the qualified professional must transmit the clinical assessment to the clerk of the court no later than the ordinary close of business on the day before the hearing (Fla. Stat. § 397.6957). The court hears and reviews all relevant evidence, including the results of the assessment completed by the qualified professional in connection with this chapter (Fla. Stat. § 397.6957).

Testimony is taken under oath and recorded, and the respondent may refuse to testify (Fla. Stat. § 397.6957). Court records in these cases are confidential, and the respondent’s attorney may receive them (Fla. Stat. § 397.6760).

What Family Members Can and Cannot Expect From the Process

Family members can give the court useful history. The court can hear testimony from relatives familiar with the respondent’s prior history and current condition (Fla. Stat. § 397.6957). But the judge decides whether the legal standard is met. Your role is to share facts, not to decide the case.

The petitioner carries the burden of proof and must prove the case by clear and convincing evidence. In a Fifth District case, the court said a judge who called and questioned the only witness after the petitioner was absent was effectively acting as the absent petitioner, and the order was reversed (J.C. v. State). A Fourth District case reached a different result and certified conflict with earlier decisions. In J.J.J. v. D.G., No. 4D2023-2185 (Fla. 4th DCA July 24, 2024), the court wrote: “we certify conflict with R.S., J.W., and C.W.R.K., for the reasons stated above. Affirmed; conflict certified.”

Write down dates, events, and documents. You may be asked about them, and details matter. Do not assume how the hearing will end. The court weighs the evidence, and your loved one’s lawyer advocates for your loved one’s position.

If Your Loved One Does Not Have a Lawyer Yet

Start by collecting the case details. Write down the case number, the court, the county, the hearing date if you know it, and any papers you received. A petition must be filed with the clerk in the county where the person is located, and the clerk may not charge a fee to file it (Fla. Stat. § 397.681). A petition filed in the wrong county is a venue problem, and the usual remedy is transfer, not dismissal (J.P. v. J.N.).

Next, ask the court about counsel. The court must decide right away whether the respondent has a lawyer or needs one appointed (Fla. Stat. § 397.68151). Do not wait on this step. In an emergency, the court may enter an ex parte assessment order without first appointing a lawyer (Fla. Stat. § 397.6818).

A lawyer’s advice depends on the facts of your loved one’s case and the timing of the petition. Raise questions about representation with the court promptly.

Talk With Robinson Casey About Your Family’s Situation

You may be trying to make sense of a petition you did not expect, for someone you worry about. That is a hard place to stand. You do not have to sort out the law on your own.

Robinson Casey limits its practice to Marchman Act petitions and guardianship matters for families across South Florida, including Miami-Dade, and statewide. You can contact Robinson Casey or call (561) 849-4149 to talk through your loved one’s situation. The first consultation is free, confidential, and carries no obligation to continue.

Richard J. Casey III, Esq. is responsible for this page. This page is attorney advertising. A matter may be referred to another lawyer or firm where appropriate.