Marchman Act and Guardianship Basics for Florida Families

What Does the Term Baker Act Mean in Florida?

It lets a person who may have a mental illness be taken to a facility for an exam, even when that person doesn’t agree, but only if there is reason to believe the person has a mental illness and, because of it, meets the criteria, such as refusing voluntary examination after a conscientious explanation.

This page explains what the term means, how an exam begins, what happens next, and how the law differs from the Marchman Act. It is the responsibility of Richard J. Casey III, Esq., of Robinson & Casey.

What Is the Baker Act?

The Baker Act is Florida’s law for involuntary examination of people who may have a mental illness. Many people also call it the Florida Mental Health Act. Fla. Stat. § 394.463 governs when a person may be taken to a receiving facility for involuntary examination.

The Baker Act is about mental health, not drinking or drug use. Substance use falls under a different law, the Marchman Act. Knowing which law applies helps you ask the right questions from the start.

Who Can Start a Baker Act and What Are the Criteria in Florida?

A Baker Act exam can begin through a court order, a certificate from an authorized professional, or a law enforcement officer’s custody. The core test appears in Fla. Stat. § 394.463.

Under that section, a person may be taken to a receiving facility if there is reason to believe the person has a mental illness. Because of that illness, the person must meet one of the listed criteria, such as refusing voluntary examination after a conscientious explanation and disclosure of the purpose of the examination, or being unable to determine for themselves whether an exam is necessary.

The Florida Department of Children and Families describes the criteria as including a risk of substantial self-neglect or serious harm to self or others.

A court can also enter an ex parte order, which is an order issued without the person present. The order must rest on sworn testimony with specific facts. Specific facts might include dates, what the person said or did, and whether the person refused care. The order is valid only until the person is delivered to the facility or for the period specified in the order, whichever comes first; if no time limit is set, it is valid for 7 days after it is signed, under the same section.

Whether the criteria are met depends on the facts of each situation. Courts look for specific facts, not general worry.

What Happens After a Baker Act Exam Begins?

The person is taken to a designated receiving facility, where the examination takes place. According to the Highlands County Clerk of Court, the examination period lasts up to 72 hours.

Family members have a role here. Under Fla. Stat. § 394.4599, a receiving facility must give prompt notice of where the person is to the guardian, guardian advocate, health care surrogate or proxy, attorney, representative, or other emergency contact. For an individual, notice must come by phone or in person within 24 hours after arrival. For a minor, the facility must attempt to notify the parent, guardian, caregiver, or guardian advocate, repeating attempts at least once every hour during the first 12 hours after arrival and once every 24 hours thereafter, until confirmation is received, unless the minor is released at the end of the 72-hour examination period, or until a petition for involuntary services is filed with the court. Staff must record each contact attempt in the clinical record.

Discharge follows set rules. Under Fla. Stat. § 394.469, when a patient no longer meets the criteria for involuntary placement, the administrator must discharge the patient, unless the patient is under a criminal charge (then transferred to law enforcement custody); transfer the patient to voluntary status unless under a criminal charge or adjudicated incapacitated; or place an improved patient, except one under a criminal charge, on convalescent status in the care of a community facility.

A common mistake is waiting for news without writing things down. Ask for the facility’s name, the time of arrival, and the staff contact’s name. Keep them in one place.

Baker Act vs. Marchman Act: What Is the Difference?

The Baker Act covers mental illness, while the Marchman Act covers substance abuse impairment. Under Fla. Stat. § 394.463, a person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness.

Under Fla. Stat. § 397.675, a person meets the criteria for involuntary admission if there is good faith reason to believe the person is substance abuse impaired, or has a substance use disorder with a co-occurring mental health disorder. The person must also have lost the power of self-control with respect to substance abuse. Further tests address the need for services and the risk of harm.

Some families face both concerns. A loved one may need a mental health exam and also struggle with substance use.

Learn more in our Marchman Act attorney guide.

Robinson & Casey limits its practice to Marchman Act petitions and guardianship matters. A Baker Act matter may need to be referred to another lawyer or firm.

How Baker Act Matters Differ From Guardianship

A Baker Act exam is a short emergency examination, while guardianship is a separate court case. In a guardianship case, a judge decides whether a person is incapable of exercising certain rights; a guardian is appointed only if no alternative to guardianship will sufficiently address the person’s problems.

Under Fla. Stat. § 744.331, notice of a petition to determine incapacity must tell the person that an attorney has been appointed to represent them. It must also say that if the person is determined to be incapable of exercising certain rights, a guardian will be appointed to exercise those rights on their behalf.

Emergency temporary guardianship moves faster. Under Fla. Stat. § 744.3031, a court may appoint an emergency temporary guardian after a petition for determination of incapacity is filed. The court must specifically find that there appears to be imminent danger that the person’s physical or mental health or safety will be seriously impaired, or that the person’s property is in danger of being wasted, misappropriated, or lost, unless immediate action is taken. That authority ends 90 days after appointment or when a guardian is appointed, whichever comes first. It can be extended for another 90 days if the emergency still exists.

Robinson & Casey’s guardianship work includes emergency temporary, plenary, limited, and mental health guardianship.

Common Questions Family Members Ask About the Baker Act

Families often ask what their options are once an exam starts.

Talk With a Florida Lawyer About Your Loved One’s Situation

If your loved one is being held for a Baker Act exam, you did not choose this, and you don’t have to work through it alone. Our team can review whether a Marchman Act or guardianship matter fits your facts. If a Baker Act matter needs another lawyer or firm, we will tell you so.

Your first consultation is free, confidential, and carries no obligation to continue. To talk through your loved one’s situation, call (561) 849-4700 or use our contact page.