What a Marchman Act Petition Cannot Do in Florida

If you’re asking what a Marchman Act petition can not do, the short answer is this: it starts a court process, but it does not decide the outcome by itself. It asks a Florida judge to review a loved one’s substance use and decide whether court-ordered help is needed. Richard J. Casey III, Esq. is the lawyer responsible for this page. Robinson Casey focuses on Marchman Act petitions and guardianship matters for families across South Florida and statewide.

Who Can File a Marchman Act Petition in Florida?

For an adult, a petition can be filed by a spouse, legal guardian, any relative, a service provider, or an adult with direct personal knowledge of the person’s substance use and treatment history, under Fla. Stat. § 397.68112. Family members often fill this role. The petition goes to the clerk of court in the county where your loved one is located. The clerk cannot charge a fee to file it, under Fla. Stat. § 397.681.

Location matters. In J.P. v. J.N., the Fifth District held that filing in the wrong county did not take away the court’s jurisdiction, though the statute requires that petitions be filed with the clerk of the court in the county where the person is located. However, as the court explained in J.P. v. J.N., the filing of the petition in the wrong county did not divest the circuit court in Putnam County of jurisdiction.

For an overview of the full process, read our involuntary commitment for addiction guide.

What a Petition Can Do for Your Loved One and Your Family

A petition puts your loved one’s condition in front of a judge at a formal hearing. That gives your family a legal process, not just informal requests. The petition must state the facts behind your belief that your loved one is impaired, has lost self-control, and either has inflicted or is likely to inflict physical harm on himself, herself, or others unless the court orders services, or refuses care because impaired judgment prevents understanding the need for it, under Fla. Stat. § 397.68141.

The court must schedule a hearing within 10 court working days, unless a continuance is granted, under Fla. Stat. § 397.68151. In an emergency, the court may rely on the petition alone and enter an assessment and stabilization order, without first appointing an attorney, under Fla. Stat. § 397.6818.

If the court finds the conditions proved by clear and convincing evidence, it may order treatment for a period not to exceed 90 days, under Fla. Stat. § 397.697. The court keeps jurisdiction after that to monitor compliance. The judge decides, and the evidence presented at the hearing drives that decision.

What a Marchman Act Petition Cannot Do

A petition cannot skip the hearing, the evidence, or the judge’s findings. Its limits are clear in the statutes.

• It cannot skip the hearing. Your loved one must be present unless the court finds a knowing waiver, or that presence is inconsistent with their best interests or likely injurious. Testimony in the hearing is taken under oath, and the proceedings are recorded.
• A clinical certificate does not have to accompany every petition. The cited section does not say what must accompany a petition. But to qualify for involuntary outpatient treatment, your loved one must receive an assessment from a qualified professional or licensed physician expressly recommending outpatient services, unless your loved one has been involuntarily ordered into inpatient treatment under this chapter at least twice during the last 36 months, or shows the ability to substantially comply with outpatient treatment while waiting for residential placement to become available, under Fla. Stat. § 397.697.
• It cannot cover mental illness alone. The criteria require substance abuse impairment, or a substance use disorder with a co-occurring mental health disorder, under Fla. Stat. § 397.675.
• It cannot create a guardianship. Guardianship starts with a separate petition under Chapter 744, such as a petition to determine incapacity.
• It cannot hold a person without limit. A service provider may not hold a person for more than 72 hours of observation, unless a listed exception applies, under Fla. Stat. § 397.6818.
• Your loved one has the right to counsel. That right applies at every stage of a court proceeding on a petition for involuntary treatment for substance abuse impairment.

Marchman Act vs. Baker Act: Which Law Covers What

The Marchman Act covers substance use, and the Baker Act covers mental illness. Florida’s involuntary process for mental health is the Baker Act. Under Fla. Stat. § 394.463, a person may be taken to a receiving facility for involuntary examination when there is reason to believe they have a mental illness and the statute’s criteria are met.

Some situations involve both. Under the Marchman criteria, a co-occurring mental health disorder counts only alongside a substance use disorder. Which process fits depends on the facts of your loved one’s case, and a court makes that call. When court-ordered treatment may be ahead for someone you love, the firm’s guide for families walks through what typically happens next.

Which States Have the Marchman Act?

The Marchman Act is a Florida law, so this page covers Florida law only. Other states have their own laws on substance use treatment, under their own names and rules. Florida’s steps do not carry over to another state.

Inside Florida, the petition goes to the clerk in the county where your loved one is located at filing. Guardianship questions follow a separate path. The American Bar Association Commission on Law and Aging studies guardianship, capacity assessment, and less-restrictive alternatives.

The Criteria a Court Looks For

In J.C. v. State, the Fifth District reversed where the trial court questioned the only witness while the petitioner was absent. That rule is Fifth District law. A Fourth District court certified conflict on a related question in J.J.J. v. D.G., so it is not settled statewide.

Facts matter at the start, too. In D.H. v. K.J.R., the Second District held that an ex parte order was improper where the petition did not give a good-faith reason to believe the criteria were met. For the kinds of proof courts consider, see our evidence guide.

Your Next Step When a Loved One’s Situation Is Urgent

If you’re researching this for someone you love, you may feel scared and short on time. You don’t have to know every rule today.

Is there a fee to file?

Robinson Casey offers a free, confidential first consultation with no obligation to continue. When substance use is endangering your loved one’s health, you can reach Robinson Casey at (561) 849-4700 or through the firm’s contact page to discuss your family’s situation.