When Your Mother Refuses Psychiatric Care, Florida Law Has Options

Where You Are Right Now: A Mother Who Keeps Refusing Care

Maybe the hospital called again. She left with a medication plan and a follow-up date. Within days, the pills stopped, and the appointment passed without her. You know this cycle well, because you’ve lived through it more than once.

You’re afraid of harm that can’t be undone. You worry someone will take her money. You fear a dangerous decision, or a day when she can’t eat, pay rent or stay safe. And you dread another crisis and another hospital stay.

This page explains the main Florida routes a family can ask a court to consider. It makes no promise about any result. Some routes fit psychiatric crises, others fit substance use, and a few overlap. Knowing the difference is the first step. Your mother keeps her rights unless a court removes them.

Why Refusing Care Does Not End Your Options

Her refusal does not settle the legal question. A judge decides whether she can still make safe decisions, and her agreement with you is not the test.

Fla. Stat. § 744.3215 lists the rights a court may remove after an incapacity order. These include the right to make health care decisions, to manage property and to decide where she lives. Only a court order removes those rights.

After a petition to determine incapacity is filed, the court appoints a three-member examining committee within 5 days, and one member must be a psychiatrist or other physician (§ 744.331). The committee reports on what she can and cannot decide.

Under § 394.463, a person may be taken for involuntary examination. That can happen when there is reason to believe she has a mental illness and, because of that illness, she refused a voluntary exam after its purpose was carefully explained. Both parts must be met, because of her mental illness: she has refused a voluntary exam after it was explained, or she is unable to determine for herself whether an exam is necessary; and, without care, she is likely to neglect herself in a way that poses a real and present threat of substantial harm (and 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 a substantial likelihood that without care she will cause serious bodily harm to herself or others in the near future, as evidenced by recent behavior.

Guardianship Options: Plenary, Limited and Mental Health Guardianship

A guardianship gives a court-appointed guardian authority only over those rights the court finds the person does not have the capacity to exercise. The judge sets the limits.

A limited guardianship is narrower. The court removes only the rights it names, and the person keeps the rest. § 744.3215 sets out which rights can be removed and which can be given to a guardian.

Under Fla. Stat. § 744.361, a guardian of the person must, to the extent applicable, make provision for the medical, mental, rehabilitative, or personal care services for the welfare of the ward. The guardian must also evaluate residential options (§ 744.361). The guardian with authority over the ward’s person must, as appropriate under the circumstances, consider the ward’s own expressed wishes, and must not act against her best interests.

Limits matter. Under § 744.3215, without first obtaining specific authority from the court, as described in s. 744.3725, a guardian may not commit the ward to a facility, institution, or licensed service provider without formal placement proceeding, pursuant to chapter 393, chapter 394, or chapter 397.

For a less sweeping step, a court can appoint a guardian advocate for mental health treatment decisions. Under § 394.4598, the court must appoint one when a patient is found incompetent to consent to treatment, has not been found incapacitated, and has no guardian with that authority. She has the right to an attorney at that hearing.

Emergency Temporary Guardianship When Danger Is Immediate

Emergency temporary guardianship is a short-term court order a judge can issue when waiting could cause serious harm. It is available only after a petition to determine incapacity has been filed (§ 744.3031).

The judge must make a specific finding of imminent danger. The finding must show that her physical or mental health or safety will be seriously impaired, or that her property is at risk of being wasted, misappropriated or lost, unless immediate action is taken.

Notice moves fast. Your mother and her attorney must be served at least 24 hours before the hearing. The only exception applies when the petitioner shows that substantial harm would occur if that notice is given. The court must also appoint counsel for her during these summary proceedings.

The order does not last forever. Its authority ends 90 days after appointment or when a guardian is appointed, whichever comes first. The court may extend it for another 90 days if the emergency conditions still exist.

A written list of incidents, with dates, names and what happened, gives the court concrete facts to weigh.

When Substance Use Is Part of the Picture: The Marchman Act

The Marchman Act is Florida’s court process for involuntary treatment when substance use impairs a person’s self-control and judgment. § 397.675 sets the criteria. A person may be admitted when there is good faith reason to believe they are substance abuse impaired, or have a substance use disorder with a co-occurring mental health disorder.

The person must also have lost power of self-control about substance use. In addition, they must be in need of substance abuse services and, because of the impairment, be unable to appreciate that need and make a rational decision about it; or, without care, 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; or there is a substantial likelihood they have inflicted, threatened or attempted to inflict, or, unless admitted, are likely to inflict, physical harm on themselves or another. Mere refusal of services is not, by itself, evidence of lack of judgment.

For an adult, a spouse or legal guardian, any relative, a service provider, or an adult with direct personal knowledge of the impairment and of the person’s prior course of assessment and treatment may file (§ 397.68112). File with the clerk in the county where the person is located. The clerk may not charge a filing fee (§ 397.681).

A petition filed in the wrong county is a venue problem, not a loss of the court’s power. The Fifth District held this in J.P. v. J.N.

Your mother has the right to counsel at every stage, although she may waive that right if she is present and the court finds the waiver is made knowingly, intelligently, and voluntarily. If she cannot afford private counsel, the court can appoint one. The Second District has held that a Marchman respondent has a constitutional right to counsel (Hillsborough County v. Albrechta).

Protecting Money and Daily Needs While the Case Moves

A guardian of property must keep records and report to the court. That is one of the main checks in the process.

Being family does not give you control over her money. § 744.3215 includes the right “to manage property or to make any gift or disposition of property” in its list of rights that may be removed from a person by an order determining incapacity and which may be delegated to the guardian. A person under guardianship keeps the right to be protected against abuse, neglect and exploitation.

A guardian is a fiduciary. A guardian who is given authority over the ward’s property must protect and preserve it and keep clear, distinct, and accurate records (§ 744.361). A guardian of property must also file an annual accounting. It must show receipts, disbursements and the property on hand (§ 744.3678).

Start a dated log now. Keep hospital discharge papers, notes on refused medications, missed bill notices and any unsafe incidents. Write down dates, names and what happened. These records give a lawyer the facts quickly.

Next Steps: Talking With a Florida Guardianship Attorney

The next step is a conversation about which route fits your mother’s facts and what your family should document now.

Richard J. Casey III, Esq. is responsible for this page. Robinson Casey focuses on Marchman Act and guardianship matters and serves families across South Florida and statewide. The firm offers a free, confidential initial consultation, with no obligation to continue. Call (561) 849-4700 or reach out through the contact page.

Common questions