Marchman Act or Mental Health Guardianship? Understanding the Difference in Florida

The Marchman Act and guardianship are two separate Florida court processes. The Marchman Act deals with substance use. Guardianship deals with a person’s incapacity to make safe decisions. Families in Miami-Dade and across South Florida often face both worries at once. Knowing the difference early helps you decide what to ask about first.

The short answer: two statutes for two different problems

The Marchman Act is in Florida Statutes chapter 397 and covers substance use.

The two ideas differ at the core. A Marchman Act case asks whether substance use has put someone at risk. A guardianship case asks whether a person can manage their own care, money, and daily life.

The two can also overlap. A person may have a mental health condition and also use substances. That is why the question is worth asking early, before a crisis forces a choice.

Families often ask which process to start first. The label a family uses matters less than the facts behind it. Whether a given path fits depends on the facts, and the rest of this page explains what courts look at.

What the Marchman Act covers under chapter 397

The Marchman Act is a court process for a person whose substance use is believed to put them or others at risk. It is not a general finding that someone cannot run their affairs.

Under Fla. Stat. § 397.675, there must be good faith reason to believe the person is substance abuse impaired or has a substance use disorder and a co-occurring mental health disorder. The person must also have lost the power of self-control with respect to substance abuse.

The person must also meet one more test. They must need services and be unable to appreciate that need or make a rational decision about it, or be likely to neglect themselves in a way that poses a real and present threat of substantial harm that cannot be avoided through willing, able, and responsible family members or friends or other services. Alternatively, there must be a substantial likelihood that the person has inflicted, threatened, or attempted to inflict, or is likely to inflict, physical harm on themselves or another. The statute adds that mere refusal of services is not, by itself, evidence of lack of judgment.

A petition must be filed with the clerk of the court in the county where the person is located. The clerk of the court may not charge a fee for filing a petition for involuntary treatment for substance abuse impairment. The respondent has the right to counsel at every stage of the case, and may waive that right only if present and the court finds the waiver is made knowingly, intelligently, and voluntarily. Fla. Stat. § 397.681

The petitioner must prove the case by clear and convincing evidence, according to Fla. Stat. § 397.6957.

For the full overview, see our involuntary commitment guide.

What guardianship covers under chapter 744, including mental health guardianship

Guardianship is a court process in which a judge decides a person is incapacitated and appoints a guardian to make certain decisions. Mental health guardianship applies when the incapacity comes from a mental health condition rather than substance use alone.

After a petition is filed, the court appoints an examining committee, and each member must file a report with the clerk of the court within 15 days after appointment. One member must be a psychiatrist or other physician, under Fla. Stat. § 744.331.

A guardianship can be plenary, meaning broad, or limited, meaning narrower. The petition must state which extent the petitioner wants, per Fla. Stat. § 744.334.

Emergency temporary guardianship is a faster route. Its authority ends after 90 days or when a guardian is appointed, whichever comes first, though it may be extended for an additional 90 days upon a showing that the emergency conditions still exist.

A person under guardianship keeps certain rights. These include the right to be treated with dignity and protected from abuse, neglect, and exploitation, under Fla. Stat. § 744.3215.

A guardian is a fiduciary. A guardian may exercise only those rights that have been removed from the ward by an order determining incapacity and delegated to the guardian.

Side by side: substance use versus incapacity

The Marchman Act asks whether substance use requires court-ordered assessment or treatment. Guardianship asks whether a person lacks capacity and needs a court-appointed decision-maker.

Read the table as a starting point. Each case turns on its own record.

When a family may need the Marchman Act, a guardianship, or both

A family usually looks at the Marchman Act when substance use is the central concern. Picture a parent who drinks heavily every night, drives afterward, and refuses any treatment. The family’s worry is that someone will be hurt. A Marchman Act petition is the natural question to ask in that case.

A family usually looks at guardianship when a mental health condition leaves a person unable to manage bills, medications, or housing. Picture an aunt who cannot handle her finances and is being taken advantage of. Guardianship is the natural question in that case.

Some families face both. A young adult may have a mental health condition and also use drugs. The Marchman Act provides that if, during the hearing, the court has reason to believe the respondent has a mental illness in addition to substance abuse impairment and meets the involuntary commitment provisions of part I of chapter 394, the court may initiate involuntary examination under those provisions.

That rule matters when the two paths meet.

The facts drive which path fits. Those facts include diagnosis history, recent behavior, who is at risk, and which decisions are failing.

How a Florida court looks at the facts

A court starts with the petition. The petition must give the reasons behind the belief, not just the conclusion. A Marchman petition must name the respondent and the petitioner, state their relationship, and list the facts that show a need for services, under Fla. Stat. § 397.68141.

A guardianship petition must be verified. It must say which rights the person cannot exercise. It must also say whether the person uses supported decisionmaking or other help, and why that help is not enough, under Fla. Stat. § 744.3201.

Guardianship law also asks the court to look at alternatives. A guardian may not be appointed if an alternative will sufficiently address the person’s problems.

Where a case is filed matters. In J.P. v. J.N., the Fifth District held that filing a Marchman petition in the wrong county did not take away the circuit court’s jurisdiction. Even so, filing the petition in the wrong county did not strip the Putnam County circuit court of its jurisdiction (J.P. v. J.N.). That is one appellate decision, so read it as one court’s view.

Families in Miami-Dade can review local filing steps in our Miami-Dade involuntary commitment guide. This is general information about Florida law, not a forecast of how any judge will rule.

Talk through your family’s situation with Robinson Casey

If a loved one’s drinking or drug use, or a mental health decline that leaves them confused or unsafe, has your family unsure which court process to start, you don’t have to sort it out alone. Reach us at (561) 849-4149 or through our contact form to talk through the facts.

Richard J. Casey III, Esq. is the responsible lawyer for this page. Robinson Casey focuses its practice on Marchman Act petitions and guardianship matters, serving families across South Florida and statewide. The first consultation is free, confidential, and carries no obligation to continue.