Baker Act in Florida: Can a Family Member Start One?

Seeing a loved one taken for a mental health evaluation is frightening. It often leaves you with many questions at once.

Can you start a Baker Act hold yourself? No. Florida law names who can start an involuntary examination, and a family member is not among them. This page explains who can start the process and when a Marchman Act petition for substance use may come next.

Can You Baker Act Someone Yourself in Florida?

No, a family member cannot start a Baker Act hold on their own. The statute names who can.

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, because of that illness, they meet further criteria, such as refusing a voluntary examination after its purpose has been carefully explained. The process can start in one of these ways:

• A circuit or county court enters an ex parte order, which is a judge’s order based on sworn testimony.
• A listed professional, such as a physician or clinical social worker, signs a certificate after examining the person within the preceding 48 hours.
• A law enforcement officer takes the person into custody when less restrictive options aren’t available.

Family members aren’t on that list. Your information still matters. In an emergency, many families call 911 or ask a law enforcement officer to respond. Be ready to describe specific behaviors, threats, dates and any past treatment. Courts must base an ex parte order on sworn testimony that includes specific facts, so concrete details carry real weight.

What Happens During a Baker Act Hold

A Baker Act hold is an involuntary examination at a receiving facility, not a stay in jail. Under Fla. Stat. § 394.455, a receiving facility is a public or private facility or hospital the state designates to hold people for evaluation under emergency conditions. The definition says it does not include a county jail.

The Florida Baker Act initiation guide describes a 72-hour examination period. During that window, the facility evaluates the person. Once the person no longer meets the criteria, the administrator must discharge them unless they face a criminal charge, in which case they go to the custody of a law enforcement officer; transfer them to voluntary status on their own authority or at their request, unless they face a criminal charge or have been adjudicated incapacitated; or place an improved patient on convalescent status in the care of a community facility, except one facing a criminal charge. Fla. Stat. § 394.469 sets out those options.

Two terms get mixed up. The Baker Act covers mental illness under Chapter 394. The Marchman Act covers substance use under Chapter 397. The mental illness definition leaves out intoxication and substance abuse.

A person held for examination keeps basic rights. Fla. Stat. § 394.459 says a patient’s dignity must be respected at all times, including when the patient is taken into custody, held or transported.

When the Marchman Act Comes Into Play After a Baker Act Hold

The Marchman Act applies when substance use is the core concern, and it runs through a court petition. Under Fla. Stat. § 397.675, a person may meet the criteria when there is good faith reason to believe they are substance abuse impaired. They must also have lost self-control over substance use. Their impairment must leave them incapable of appreciating their need for services and making a rational decision about them, or, without care or treatment, they must be likely to neglect themselves in a way that poses a real and present threat of substantial harm, with no apparent way to avoid that harm through willing, able, and responsible family members or friends or other services; or there must be a substantial likelihood they have inflicted, threatened, or attempted physical harm on themselves or another. 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 covers a substance use disorder that occurs with a mental health disorder.

Under Fla. Stat. § 397.68112, an adult’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 substance use and prior treatment.

The petition must name both parties and state their relationship. It must also give the factual reasons for the belief that the person is impaired, the reasons for the belief that because of that impairment the person has lost the power of self-control with respect to substance use, and the reasons the petitioner believes the person has inflicted or is likely to inflict physical harm or cannot appreciate the need for care. A professional’s report from within 30 days may be attached. See Fla. Stat. § 397.68141.

The respondent has a right to counsel at every stage of the proceeding, however the respondent may waive that right if the respondent is present and the court finds that such waiver is made knowingly, intelligently, and voluntarily. See Fla. Stat. § 397.681. See Fla. Stat. § 397.681.

Court practice matters too. In C.W.R.K. Fifth District ruling, the court held that a trial judge erred when, with the petitioner absent, it called and questioned the professional who signed the certificate. That rule comes from the Fifth District. The Fourth District has certified conflict on the point, so it is not a statewide rule.

Whether a Marchman petition fits your situation depends on the facts.

Steps and Timeline From the Hold to a Marchman Act Petition

The path usually runs in order: the hold, the examination, a discharge decision, and then a court filing if one is needed.

1. Initial contact. Under a court’s ex parte order, if other less restrictive means are not available, a law enforcement officer or other designated agent of the court must take a person who appears to meet the criteria for involuntary examination into custody and deliver them to an appropriate, or the nearest, receiving facility.
2. Examination. The examination period is up to 72 hours from the person’s arrival at the receiving facility. For a minor, the examination must be initiated within 12 hours after arrival.
3. Facility decision. At any time a patient is found to no longer meet the criteria for involuntary placement, the administrator must discharge them unless they face a criminal charge, in which case they go to the custody of a law enforcement officer; transfer them to voluntary status on their own authority or at their request, unless they face a criminal charge or have been adjudicated incapacitated; or place an improved patient on convalescent status in the care of a community facility, except one facing a criminal charge.
4. Court filing. If substance use is involved, the petition goes to the clerk in the county where the person is located. Under Fla. Stat. § 397.681, the clerk may not charge a filing fee. A petition filed in the wrong county raises a venue problem, not a loss of the court’s power, under J.P. v. J.N..
5. Emergency order. When emergency circumstances exist, the court may enter an ex parte order without appointing an attorney. Under Fla. Stat. § 397.6818, a provider may not hold the person for more than 72 hours of observation unless a listed exception applies.

Before any filing, gather:

• Dates and times of the hold
• Names of officers and professionals involved
• Medication and treatment history
• Prior assessments
• Paperwork from the facility

A common mistake is building a petition on general worries. In D.H. v. K.J.R., the appeals court found the trial court erred in entering an ex parte order. The petition did not give a good-faith reason to believe the criteria were met. Court scheduling also varies by county and case.

Your Loved One’s Rights and What to Document

Your loved one keeps core rights during a hold. Written notes can help you track what happens.

Under Fla. Stat. § 394.4599, a receiving facility must promptly tell a guardian, guardian advocate, health care surrogate or proxy, attorney, representative, or other emergency contact where a person who is being involuntarily held for examination is. That notice goes out within 24 hours of arrival. Notice to the person must be given orally and in writing, in language they understand.

Under Fla. Stat. § 394.4599, a treatment facility must give notice of a person’s involuntary admission on the next regular working day after arrival, and the notice must go to the person and to the person’s guardian, guardian advocate, health care surrogate or proxy, attorney, and representative. The person, the person’s guardian, guardian advocate, health care surrogate or proxy, or representative, or the facility administrator can apply for a change of venue for the convenience of the parties or witnesses or because of the person’s condition.

Under Fla. Stat. § 394.459, the person may communicate freely and privately unless a qualified professional determines that this is likely to be harmful to the person or others in a manner directly related to the person’s clinical well-being, the clinical well-being of other patients, or the general safety of staff.

What to document:

• A written timeline of behavior, statements and dates
• Copies of every form and notice you receive
• Names, roles and phone numbers of officers and staff you speak with

A common mistake is waiting days to write things down. Notes made close to the events are easier to rely on later.

How Robinson Casey Approaches These Matters

Robinson Casey limits its practice to Marchman Act petitions and guardianship matters. The firm serves families across South Florida, including Miami-Dade, and statewide.

Richard J. Casey III, Esq. is the responsible lawyer for this page. Our attorneys and our team focus on these matters:

• Marchman Act petitions and involuntary commitment for addiction
• Guardianship matters, including emergency temporary, plenary, limited and mental health guardianship

When a Marchman Act petition is part of your family’s situation, that is the matter the firm focuses on.

Frequently Asked Questions

Can a family member start a Baker Act hold in Florida? No. The statute names courts, listed professionals and law enforcement officers as those who start the process.

How long can someone be held under the Baker Act? The state courts’ Baker Act guide describes a 72-hour examination period. Further steps follow that evaluation.

What is the difference between the Baker Act and the Marchman Act? The Baker Act covers mental illness under Chapter 394. The Marchman Act covers substance use under Chapter 397 and starts with a court petition.

Does the first consultation cost anything? The first consultation is free, confidential, and carries no obligation to continue.

Talk With Robinson Casey About Your Loved One’s Situation

If your loved one is on a hold right now, you may be carrying a lot of questions at once. You may also be wondering whether a Marchman Act petition could follow once the examination ends.

Our team can talk through the facts of your situation and the steps ahead. Call (561) 849-4149 or schedule a consultation.