Marchman Act Legal Forms

Introduction

The Florida Marchman act is a civil confidential legal proceeding allowing family, friends or any person with direct personal knowledge to help a loved one suffering with a substance abuse or a co-occurring disorder (both substance abuse and mental illness) refusing to help themselves. 

Florida Law Title XXIX – Public Health – Chapter 397 is the specific statutory scheme better known as the “Florida Marchman Act”. The law does not distinguish between drug dependency and alcoholism using only the term “substance abuse.” The Marchman Act, confidentially through the court system, allows families and friends to compel their loved one to obtain treatment. The Marchman Act contains nine separate parts. Each part contains various laws ranging from providing definitions to issues regarding provider licensing. The complete statute and all of its contents can be viewed online.

There are two types of “parties” (individuals involved in the litigation of the matter). The person brining or initiating the Marchman Act is the party known as the “petitioner” (there can be multiple petitioners). The individual refusing to obtain treatment and in need of services is the party known as the “respondent”. For the purposes of this instructional legal guide generally only parts I, III and V are relevant. Part V – INVOLUNTARY ADMISSIONS PROCEDURES is primarily most relevant and is the section used to obtain court orders for assessment, stabilization and treatment. With regard to Parts I – General Provisions – the pertinent section is Florida Statute 397.311 – Definitions. Florida Statute 397.501, Part III – Rights of individuals – provides a myriad of rights for respondents subject to being involuntarily ordered to under-go assessment, stabilization and treatment. The rights are all encompassing including a respondent’s right to counsel and medical record privacy. 

The Marchman Act is a Florida law and can be used for only those respondent’s physically located in the State of Florida. The respondent does not have to be a Florida resident. The law specifically states a petition must be filed in the county where the respondent is physically located.  The petitioner does not need to be physically located in Florida nor a Florida resident. Although the Marchman Act is a state law which applies to all parties, the law may be procedurally handled differently in various counties throughout the state. How to navigate the procedural methodology employed by the local court in the county where you will be filing your petitions will be further addressed where needed in these instructions.

Forms 

Florida Statute 397 has various provisions indicating what content must be provided to the court in the petitions seeking involuntary treatment services. As of July 1st, 2024, there were various new amendments to the statute. Some of the changes effect what must be included in the Marchman Act Involuntary Services Petition. If the required information is not included, the Petition can be subject to dismissal. Currently there is no specific form formally developed by the Courts or state agencies for pro se use.  Individuals seeking to petition the court on their own, known as “petitioners”, are also referred to as “pro se litigants” meaning they are not represented by counsel. We have developed a Petition for Involuntary  Services form in full compliance and meeting all requirements as set forth in the current Marchman Act to be used after July 1st 2024. The form petition is made available to you in this instruction packet. If the county in which you are filing the petition does have its own form for pro se use simply take the information from the petition used as part of this manual and insert the information into the counties form. The requirements set forth in the statute as to what information should be included in a petition is the same for everyone so our petition and those created by a county should be very similar. 

County Procedures

There are 67 counties in the State of Florida. Procedures differ from county to county. Despite the Marchman Act being a state-wide statute applying equally to everyone, each county has specific local procedures as to how a Marchman Act petition is procedurally moved through that counties court system. Once you, as the pro se petitioner, have followed these instructions, and filled out the petition you are seeking to file, you should at the time of filing speak with the local clerk (where you will be filing the petition) and become familiar with the local counties’ unique procedures. 

Marchman Act Criteria 

The general criteria the court must find based on the evidence you provide is the following:

Florida Statute  397.675 – Criteria for involuntary admissions, including protective custody, emergency admission, and other involuntary assessment, involuntary treatment, and alternative involuntary assessment for minors, for purposes of assessment and stabilization, and for involuntary treatment.

A person meets the criteria for involuntary admission if there is good faith reason to believe that the person is substance abuse impaired or has a substance use disorder and a co-occurring mental health disorder and, because of such impairment or disorder:

(1) Has lost the power of self-control with respect to substance abuse; and

(2)(a) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or

     (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.

Ex parte and Live Hearings

The Marchman Act allows the court the option to either make an ex parte ruling, (if there are emergency circumstances), and enter an order for assessment and stabilization based solely on the contents of the petition (an “ex parte” proceeding) or schedule the matter for hearing. Either and/or both options must be done within 10 days of filing. If an emergency is alleged in the petition, the courts typically recognize the need for urgency and therefore enter the ex parte order on an expedited basis. The second phase of the Marchman Act (seeking an order directing the respondent to comply with any recommended services for a period not to exceed 90 days) will be set for hearing within 10 days of filing the Petition. 

Circuit Court Judges and Magistrates

It is important to note the statute allows for the court to appoint a General Magistrate to hear Marchman Act proceedings. A General Magistrate is an  attorney appointed by a judge to take testimony and recommend decisions on certain matters connected with the Marchman Act. These recommendations are then reviewed by the presiding circuit judge and are generally approved unless contrary to the law or the facts of the case. General Magistrates are typically used by the courts in high population counties. The problem you may encounter when a General Magistrate is used, is despite recommending that the petition be granted and an ordered entered, the law and statutes regarding the use of a general magistrate allow for an “exception” period. The exception period lasts 10 days and allows either party to file exceptions to the General Magistrates report and recommendation. If the 10-day exception period is not “waived” by both parties the circuit court is not allowed to enter the order until expiration of the ten-day period.  If it is the Circuit Judge who is actually hearing the case the 10-day exception period does not apply. The statute governing the referral of a Marchman Act case to a General Magistrate does provide the all parties must accept the referral. If objected to, the magistrate is not permitted to hear the matter and it must be heard by the presiding circuit judge. 

Filing the Petition for Involuntary Services

Necessary Definitions

The first step in gaining control and initiating a Marchman Act is to file the Petition for Involuntary Services. In this initial phase you are seeking to have your loved one literally assessed and stabilized (detoxed) and ultimately court ordered to follow treatment recommendations for a period not to exceed 90-days. Pursuant to 397.311(7) and (46) of the statute, “assessment” and “stabilization” respectively, are defined as:

“Clinical assessment” means the collection of detailed information concerning an    individual’s substance use, emotional and physical health, social roles, and other areas that may reflect the severity of the individual’s abuse of alcohol or drugs. The collection of information serves as a basis for identifying an appropriate treatment regimen.”

And “stabilization” is:

 “Stabilization” means: (a) Alleviation of a crisis condition; or (b) Prevention of 

  further deterioration”

Initiation and admission 

When the court finds emergency circumstances exist and enters an ex parte order for assessment and stabilization, the court will also order law enforcement to pick up the respondent and deliver the respondent to the designated facility as indicated in the order. The newly amended section 397.6957(c)(1) states:  

“The respondent’s assessment by a qualified professional must occur within 72 hours after his or her arrival at a licensed service provider unless the respondent shows signs of withdrawal or a need to be either detoxified or treated for a medical condition, which shall extend the amount of time the respondent may be held for observation until such issue is resolved but no later than the scheduled hearing date, absent a court-approved extension.” 

In essence, the respondent can be held and detoxed for a time that cannot exceed the scheduled live court hearing date. Typically, the live hearing will be set 7 –10 days after filing. If the ex parte order was granted the pick-up, delivery, assessment and stabilization must be completed by the date of the live hearing. If any of the aspects of the ex parte order have not been completed by the live hearing date, the petitioner should attend the hearing at which time the court will schedule a new hearing date to allow for the completion of the ex parte order. 

Who can be a petitioner?

The next step is to determine whether you are a person who has the legal ability to be a valid petitioner (or as lawyers put it – a person with “standing”). Here is the pertinent language of 397.68112 describing who can be a petitioner: 

“(1) If the respondent is an adult, a petition for involuntary treatment services may be filed by the respondent’s spouse or legal guardian, any relative, a service provider, or an adult who has direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment. (2) If the respondent is a minor, a petition for involuntary treatment services may be filed by a parent, legal guardian, or service provider.”

As you can see from the language stated above, if the respondent is an adult, any adult can be a petitioner as long as the individual has “…direct personal knowledge of the respondent’s substance abuse impairment.” If the respondent is a minor, a petitioner can be only those individuals as stated in paragraph (2) above. You have standing to be the petitioner if you meet the qualifications as stated above. Please note there can be more than one petitioner listed. If there are more loved ones, friends or even medical providers that want to also act in the capacity as a petitioner they can do so. As you will see below their names simply need to be added to the Petition. 

Contents of the Petition 

397.68141 – Contents of Petition for Involuntary Treatment Services – states the petition must contain the name of the respondent, the name of the petitioner, the relationship between the respondent and the petitioner, the name of the respondent’s attorney, if known, and must state facts to support the need for involuntary services for substance abuse impairment. Facts must be stated in the petition supporting the following:

(1) The reason for the petitioner’s belief that the respondent is substance abuse impaired;

(2) The reason for the petitioner’s belief that because of such impairment the respondent has lost the power of self-control with respect to substance abuse; and

(3)(a) The reason the petitioner believes that the respondent has inflicted or is likely to inflict physical harm on himself or herself or others unless admitted; or

     (b) The reason the petitioner believes that the respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care. If the respondent has refused to submit to an assessment, such refusal must be alleged in the petition.

(4) The petition may be accompanied by a certificate or report of a qualified professional who examined the respondent within 30 days before the petition was filed. The certificate or report must include the qualified professional’s findings relating to his or her assessment of the patient and his or her treatment recommendations. If the respondent was not assessed before the filing of a treatment petition or refused to submit to an evaluation, the lack of assessment or refusal must be noted in the petition.

(5) If there is an emergency, the petition must also describe the respondent’s exigent circumstances and include a request for an ex parte assessment and stabilization order that must be executed pursuant to s. 397.68151.

The Above section literally states what information is required to be in the Petition for Involuntary Services and should be reviewed carefully. We will provide you with specifics regarding the type of facts that should be stated in each section When we provide the step-by-step instructions regarding filling out the petition form. 

Timing, court determination and facts

Pursuant to Florida Statute 397.68151 – Duties of court upon filing of petition for involuntary services – Upon the filing of a petition with the clerk of the court, the court shall immediately determine whether the respondent is represented by an attorney or whether the appointment of counsel for the respondent is appropriate and schedule a hearing within 10 court working days.  Once the Petition is filed the court must determine whether there is a “reasonable basis” to believe the respondent meets the involuntary admission criteria of s. 397.675. When filing out the Petition it is important to give the court enough facts so the court can find there exists a “reasonable basis” that the respondent does meet the involuntary admission criteria. Your facts should generally include all known substances the respondent is believed to be using, specifically how why you know the respondent is using the substances, and the effect the substance abuse is having on the respondent. Also, if there is an emergency situation and circumstances exist to warrant the court to enter an ex parte order, you must state an emergency exists, you are seeking an ex parte court order and provide the court with facts of the emergent circumstances. 

Instructions to fill out form for Petition for Involuntary Services

The “style” of the case

In the very top of the form you will find the following “style” of the case. 

IN THE CIRCUIT COURT OF THE  JUDICIAL CIRCUIT

                                              RESPONDENT

Every county in Florida is part of a Judicial Circuit. Some Circuits may be made up of only one county and other circuits consist of several counties. You can go to the below website provided by the Florida bar to find out which Judicial Circuit encompasses the particular county you are about to file in (remember you must file your Petition in the County where the respondent is physically located):  https://www.floridabar.org/directories/courts/maps-circuit/

Enter the Judicial circuit number, the county and the full legal name of the respondent (this is the individual you are seeking to get help for). Since your petition is not filed yet there is no case number to insert. Once filed the clerk of the court will provide the case number. 

Petitioner and Respondent Information

In the next following paragraph, you will insert your name as the petitioner (and any other names of individuals seeking to be a petitioner as well), the name of the respondent, and provide his/her exact age. You must also indicate the nature of the relationship you (and any other petitioners listed) have with the respondent. Be specific.

I/we (insert Petitioner(s) names) ________________, as (insert relationship to Respondent, i.e. Mother, Father, Spouse, Friend) hereby state that as the Petitioner(s) in this matter do hereby seek and request the Respondent (insert Respondent’s name) __________ , age ____ under-go court-ordered involuntary treatment and in support of said petition, and having direct personal knowledge regarding the respondent’s substance impairment and prior course of assessment and treatment, would state as follows:

Paragraphs 1 and 2.

Here if you are asserting to the court emergency circumstances exists warranting the court enter an ex parte order as described previously you must check off the blank.  

1) ______The Petitioner is asserting an emergency exists and is requesting an ex parte order be issued directing law enforcement to pick up the Respondent and transport the Respondent to the nearest designated treatment provider or any provider designated by the Court. The exigent facts supporting the emergency request are stated below. 

1. a) Facts indicating emergency circumstances for an ex parte order: __________________________________________________________________

2) ______The Petitioner is NOT stating an emergency exists and requests this matter be set by the court within ten (10) days. 

It is extremely important that you clearly indicate to the court if an emergency exists warranting the court to take immediate action. The petitioner must clearly and concisely describe the emergency. Simply stating “the respondent is abusing substances” does not describe an emergency situation. An emergency situation can be described as “the respondent is driving while impaired everyday endangering himself/herself as well as others” or “the respondent has recently overdosed and immediately continued to abuse substances putting his/her life in jeopardy”

Paragraph 3

Paragraph 3 and its subparts requests specific information. Each subpart is in essence a breakdown of the Marchman Act criteria and what the court needs to find and substantiate the basis of the 90-day order.  You may find some factual information may be relevant to various subparts. Generally, try to include how long the respondent has been suffering with substance abuse and any co-occurring disorder (an associated mental health issue). Also, you should separately describe the length of time and significant nature of the respondent’s recent abuse. For example, “The respondent has a long history of substance abuse for over the past five years (describe) or “Recently, over the past several months, the respondent’s abuse has grown significant and out of control.”

Paragraph 3(a) 

Paragraph 3(a) seeks facts as to why you the petitioner believes the respondent is substance abuse impaired. The definition of “substance abuse impaired” pursuant to F.S. 397.311(19) is: 

“ ‘Impaired’ or ‘substance abuse impaired’ means having a substance use disorder or a condition involving the use of alcoholic beverages, illicit or prescription drugs or any psychoactive or mood-altering substance in such a manner as to induce mental, emotional, or physical problems or cause socially dysfunctional behavior.” 

Facts provided in your answer should be focused “how” the use of substances have created a “condition” resulting in “mental, emotional, or physical problems and cause socially dysfunctional behavior.” For example,  “The respondents continual use of (describe substances used) causes the respondent to become delusional (describe) and verbally or physically aggressive toward family or others (describe instances)”, “The respondent’s use of (describe substances used) causes the respondent to repeatedly fall, not eat and neglect and endanger themselves (describe condition)”, and “The respondent’s use of (describe substances used) causes the respondent to endanger  himself and others as the respondent is known to operate a motor vehicle while under the influence of (describe substances used).”

Paragraph 3(b)

Paragraph 3(b) asks for you the petitioner to provide facts why you believe the respondent “…has lost the power of self-control with respect to substance abuse…” There is no definition of  “self-control” provided in the statute for guidance. The general definition of self-control is:  “restraint exercised over one’s own impulses, emotions, or desires”. Utilizing this definition, facts indicating the respondent cannot control various aspects of their daily lives whether while under the influence or not should be stated. Even if sober an individual who is substance impaired still can be suffering from a lack of self-control. General facts substantiating a lack of self-control can be, continuous substance use, self-neglect (failing to eat, failing to engage in self-hygiene, being non-functional regarding various aspects of the necessities of daily living), driving while impaired, and instances of verbal or physical aggressive behavior.

Paragraph 3(c)(1)

Paragraph 3(c)(1) seeks the “reason the petitioner believes that the respondent has inflicted or is likely to inflict physical harm on himself or herself or others unless the court orders the involuntary treatment.” Obviously, the actual use of substances, whether legal or not, to a point of abuse is indicative of an infliction of harm. You should focus on those facts that are indeed causing physical harm. Physical harm or the potential can result simply from malnutrition, self-neglect and falling. Facts of driving while impaired supports “has inflicted or is likely to inflict physical harm on himself or herself or others”. Perhaps your loved one is suffering not only with a substance abuse impairment but also a mental health disorder. Here you can describe how the substance use/abuse is negatively affecting and worsening the existing mental health disorder. Perhaps your loved one has stopped their required psychotropic medication and is attempting to self-medicate with the substance and/or substances they are abusing. Perhaps their substance impairment has led to their specific inability to manage their daily affairs, employment, relationships and exposes them to exploitation (economic, emotional or physical). 

Paragraph 3(c)(2)

Paragraph 3(c)(2) seeks “The reason the petitioner believes that the respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care”. Your answer should provide facts indicating, based on the information you already provided, the respondent is refusing to seek any type of help after being requested to do so. Perhaps the respondent has walked away from detox or treatment within a short period of time and immediately started to use and/or abuse substances now or in the past and has no insight therefore refusing to seek treatment. It is important to note in the answer specifically if the “refusal to care” has been continuous while the respondent has been using/abusing substances and the condition has only been worsening over time. You should provide facts indicating their continuous impairment prevents he/she from making any rational decision. An example would be an individual hospitalized due to substance use (i.e. overdose or alcohol poisoning) and due to their impairment still refusing to recognize their need for treatment.

Paragraph 4

Paragraph 4 seeks the name of the respondent’s attorney, if known. This is required by statute to be included in the Petition. In almost all instances it will be unlikely that the respondent knows about the filing of your Petition, obtained an attorney and disclosed the name of that attorney before filing. So, here in the Petition simply indicated “unknown”. 

Paragraph 5

Paragraph 5 seeks required information per the statute. Specifically, it must be indicated in the Petition whether the respondent was assessed before the filing of a services petition and/or refused to submit to an evaluation. If the respondent was assessed before the filing by a qualified professional within the last thirty days and you actually have that assessment, you should attach the assessment to the Petition. In most cases the respondent had never acquiesced to an assessment prior to the necessity of filing a Petition for Involuntary Services.

Paragraphs 6 and 7

Paragraphs 6 and 7 is simply language perfecting the Court’s jurisdiction and stated the relief per the statute. There is no requirement or need to change or modify this language in any way. Just let it be. 

Attestation Section

The very last section of the petition requires you to “swear and affirm” to “direct personal knowledge of the factual statements” in the Petition and that said statements are “true and correct”. DO NOT MAKE UP INFORMATION THAT SIMPLY DOES NOT EXIST. Perjury is a serious crime which has significant penalties. If the situation is desperate enough to bring you to the point of seeking a Marchman Act, the truthful facts will surely support and be enough for the court to grant your petition. As long as you are being honest regarding your knowledge of the information stated in the petition and are acting in good faith there is nothing to worry about. As you can see below, the statute grants various protections for those acting in good faith. F.S. 397.501(10) – LIABILITY AND IMMUNITY specifically states:

(b) All persons acting in good faith, reasonably, and without negligence in connection with the preparation or execution of petitions, applications, certificates, or other documents or the apprehension, detention, discharge, examination, transportation, or treatment of a person under the provisions of this chapter shall be free from all liability, civil or criminal, by reason of such acts.

Using other designated county forms

If you are using a different form developed and used in a specific county the questions seeking information while potentially worded differently will still seek the same information you gathered and provided in the form used as guidance in these instructions. You should provide the same information into the specific form required by the specific county. The bottom line is the statute states what must be provided as content in the petition. Regardless of how the form is drafted the required content is the same.  

Filing the Petition for Involuntary Services. 

Once you have fully completed the form Petition for Involuntary Services you are now ready to file it. You will need to go to the clerk’s office in the county where the respondent is physically located. Typically, it is the Clerk of the Probate Division that accepts Marchman Act filings. Once the clerk has accepted your Petition there is some information you want to obtain from the individual clerk you are dealing with. Here are some questions you should be asking for information potentially needed in the future:  

1. If the Court deems an emergency condition exists, when will the court issue an ex parte order to have the respondent picked up by local law enforcement and taken to a facility for assessment and stabilization?
2. In the alternative when will the court schedule a hearing and who will the serve the respondent to appear at the hearing?
3. What facility will the court require the respondent to be brought to or go to for assessment and stabilization? 
4. Will the assessing provider file its completed assessment with the clerk to be used at the treatment hearing?
5. Will the clerk allow you as the petitioner to obtain a copy of the filed assessment? 

The above information is important to ask and record. The answers they provide will guide you with regard to the next steps you should be doing to adhere to the local procedures. You want as much 

information you can get including contact information. 

Ultimately your loved will either be served with the Petition for Involuntary Services and a Notice of Hearing (for the live hearing) or your loved one will be picked up by law enforcement and brought to the designated facility for assessment and stabilization and served with the Petition, order (if the Petition is granted ex parte) and the Notice of Hearing. 

Hearing on Petition for Involuntary Services

When you filed the Petition for Involuntary Services you will have been provided with the courts notice of hearing indicating the date and time of the hearing. Should the respondent not show up at the schedule time and place for the hearing, after being served with a summons to appear, the court will proceed with the hearing. If the respondent was served to appear at the hearing and does not attend, you should insist that the hearing move forward.  Once at the hearing, if all parties are present, the court will first inquire of the respondent if the respondent desires an attorney to represent him/her (if respondent is present). If so, and the respondent is indigent, the court will appoint an attorney from the Office of Regional Conflict Counsel. Many times, after the appointment, regional conflict counsel will speak with the respondent and determine if they are either willing to agree to the entry of the order without hearing or if the respondent wants to fight the petition. If an agreement can be reached the order will be entered and the respondent will be sent off to be assessed and stabilized (if there was no emergency exparte order entered) and a new hearing date for determination of the entry of a 90-day treatment order. If the respondent was assessed and stabilized pursuant to an ex parte order entered earlier, the respondent can agree to the entry of a 90-day order or proceed with the evidentiary hearing. If no agreement is reached, then the court will typically immediately move forward with the evidentiary hearing. The court will then seek testimony from you and any other witnesses you may have. Your testimony and any witness testimony will be subject to cross examination. Once completed the court will then entertain any evidence and testimony from the respondent (if present). At the conclusion of the hearing the court will either grant or deny your petition. If granted an order will by entered. 

The petitioner has the legal burden of proving the petition for involuntary treatment services by and through clear and convincing evidence. Clear and convincing evidence has been interpreted by Florida Courts to require that the evidence be found to be credible. The evidence must be of such weight that it produces in the mind of the trier of fact (the court) a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. At a hearing on a petition for involuntary treatment services, the court shall hear and review all relevant evidence, including the review of results of the assessment completed by the qualified professional.

Proving the Petition

Pursuant to Florida Statute 397.6957, the petitioner has the burden of proving by clear and convincing evidence:

“(a) The respondent is substance abuse impaired and has a history of lack of compliance with treatment for substance abuse; and

  (b) Because of such impairment the respondent is unlikely to voluntarily participate in the recommended services or is unable to determine for himself or herself whether services are necessary and:

1. Without services, the respondent 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 there is a substantial likelihood that without services the respondent will cause serious bodily harm to himself, herself, or another in the near future, as evidenced by recent behavior; or

2. The respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care.”

The court shall allow testimony from any individual, including family members and friends, deemed by the court to be relevant under state law, regarding the respondent’s present condition, prior history and how that prior history relates to the person’s current condition. The testimony in the hearing must be under oath, and the proceedings must be recorded. The respondent may refuse to testify at the hearing. At the conclusion of the hearing the court shall dismiss the petition or order the respondent to receive involuntary services from his or her chosen licensed service provider if possible and appropriate.

Granting the Petition for Involuntary Services and the Court Order

If the court grants the Petition for services, it will enter an order. Although the content of services orders varies from county to county, generally the order directs the respondent to undergo and comply with services for a period not to exceed 90 days. The court will also designate a provider for those services. The court is typically not concerned with who the respondent seeks service with or the level of care. The court is there to ensure compliance. The statute does allow the respondent the ability to be involved in the choice of provider as long as the provider is “licensed and appropriate”. Typically, after a hearing and an order entered, the respondent simply had not even given any thought as to where he/she would like to go for substance abuse treatment. If the respondent has private insurance, and/or the ability to self-pay, or some other payment source is available, a private service provider can be engaged for treatment. Should there be no ability to pay for a private provider the court will order the designated provider be the local government funded substance abuse treatment provider in the area.   

Once the order is put in place it is the responsibility of the respondent to be compliant with the mandates of the order. The respondent will be expected to obtain and accept services until such time that the “conditions justifying involuntary services no longer exist” or put another way  – when the respondent no longer meets Marchman Act criteria. There are two very important aspects of this section of the statute to note. First, the order can be extended beyond the 90 days. Second the court retains jurisdiction over the case and the parties for the entry of such further orders as the circumstances may require. These two aspects allow the petitioner to extend the services order if warranted, and most importantly, to ensure compliance.

Extension of Services/Treatment Order

Florida Statute 397.6975 – “Extension of involuntary services period” – specifically allows for the original court order for services to be extended for up to another 90 days. The statute specifically states:

“(1) Whenever a service provider believes that an individual who is nearing the scheduled date of his or her release from involuntary treatment services continues to meet the criteria for involuntary services in s. 397.68111 or s. 397.6957, a petition for renewal of the involuntary services order must be filed with the court before the expiration of the court-ordered services period. The petition may be filed by the service provider or by the person who filed the petition for the initial treatment order if the petition is accompanied by supporting documentation from the service provider. The court shall immediately schedule a hearing within 10 court working days to be held not more than 15 days after filing of the petition and the notice of the hearing to all parties and counsel to the proceeding. The hearing is conducted pursuant to ss. 397.6957 and 397.697 and must be held before the circuit court unless referred to a magistrate.”

Typically, a provider does not seek an extension. They are not a petitioner in the case and do not want to put themselves in a position of conflict with the very person they are treating. You, as the petitioner can and should file for an extension of the original court order should the respondent continue to meet Marchman Act criteria. You should make every attempt to determine if the service provider believes the respondent does continue to meet the necessary Marchman Act criteria needed to support the extension request and whether the extension is warranted. 

If it is decided to move forward with the extension request, the Petition for the Extension must be filed “…with the court before the expiration of the court-ordered services period”. The petition must be accompanied by supporting documentation from the service provider. Any documentation will do – even an email. If you do not have the supporting documentation, it is advised that you file the request anyway.  Once filed, the clerk will issue a notice of hearing. It is very important that the provider be subpoenaed to appear and testify or be willing to do so voluntarily. You will absolutely need the provider’s testimony indicating the order should remain in place and that the respondent does still meet the original Marchman Act criteria used to obtain the original order.  Within these instructions (or click here) you will find a Petition for extension form. The form is self-explanatory and based on your prior experience filing out the original petition you should have no problem. 

Enforcement of the Court Order – Civil Contempt of Court 

Generally, every court order entered, whether it be for assessment and stabilization or for services, directs the respondent to comply with the services recommended and needed. The language and content of the court order usually differs from county to county. However, the burden and responsibility to under-go the services ordered is placed upon the respondent. If the respondent fails to be assessed, stabilized or under-go services as ordered, the respondent can be held in civil contempt of court. Examples of a failure to comply with a court order are once ordered to be assessed and stabilized the respondent leaves the facility against medical advice, the respondent does not otherwise follow the instructions of the provider, the respondent while in long term treatment pursuant to a services order, either simply does not go, leaves, stays and is disruptive and/or the respondent is discharged based on not following the rules, recommendations and/or regulations of the treating provider. Generally, a lack of compliance of with recommended treatment can be the subject of contempt and brought to the court’s attention. 

Since the Marchman Act is a civil proceeding the non-compliant respondent is subject to the court’s civil contempt power. Civil contempt is designed to compel an individual to comply with an order of the court. As a result, should a respondent be held in contempt they can avoid the potential consequence of incarceration, or be released form incarceration, by simply telling the court they are willing to go back and engage in treatment and be compliant. 

The ultimate sanction for non-compliance, after being found to be in civil contempt of court, can be incarceration. The incarceration is not like a criminal sentence which would have a time period attached and the person released upon its expiration. If one is found to be in civil contempt and ultimately incarcerated, to be released they must be brought before the court and indicate their willingness to be compliant with the court’s order  – thus availing themselves of the purge provision.  If they refuse, they can literally sit in custody and be treated in jail (if services are available and ordered by the court). The maximum the court can hold someone refusing to avail themselves of the purge provision is up to 6 months. 

Since a respondent’s freedom is potentially at stake they are entitled to full due process of the law. Due process entails that a motion must be filed alleging the contemptuous conduct, a hearing must be scheduled,  and the respondent must be individually served with the motion for contempt and the notice of hearing (summons). Ultimately the court will have a hearing on the matter. If the respondent has gone back to treatment and is compliant with the existing order obviously there is no longer a need to have the respondent held in contempt. However, if the respondent is not in compliance with the order, and after being properly served does not attend the hearing, the court will generally move forward with the hearing. If the non-appearing respondent is held in contempt the court has the authority to order the respondent be taken into custody by law enforcement. 

Within these instructions you will find a Motion for Contempt form. The form is self-explanatory and based on your prior experience filing out the Petition you should have no problem. Once you, the petitioner, have filed the Motion for contempt form you should inquire with the clerk, what if any action will be taken to have them served with the motion. It is imperative that the respondent be individually served with the motion and notice of hearing (summons). Many times, the respondent may be at a location other than the designated provider or the original address where they were located when the Marchman Act was initiated. YOU MUST HAVE THE REPSONDENT INDIVIDUALLY SERVED – therefore you must know their whereabouts. It is strongly recommended once their physical location is determine that the respondent be served using a private process server. Private process servers can be located easily online and the clerk of the court may even provide you a referral to one. Once the private process server actually individually serves the respondent they will file and provide you with the “return of service” document indicating the respondent was served with the documentation. Remember, without proper service, the court cannot proceed to act on your Motion for Contempt.

The Closing of the Marchman Act Court Proceeding

While the Marchman Act remains open the parties are subject to the court’s jurisdiction. The following are ways a Marchman Act proceeding can end: 

1) Should a case be initiated, and the petitioner no longer pursue or “litigate” the matter (i.e. not attend hearings or file the necessary forms) the matter will ultimately be dismissed by the court.

2) Should any entered order expire and further requests for services/treatment not be filed and/or requested the matter will be dismissed at the expiration of the period as set forth in the last court order.

3) Upon the request of the petitioner at any time for the matter to be dismissed.

4) Should proof be provided to the court that the respondent no longer meets Marchman Act criteria.  

Should any of the above acts or conditions arise the Marchman Act proceeding will close, and the court’s jurisdiction will end. The beauty of the Marchman Act is there is no limitations as to the number of times the Marchman Act can be filed and utilized to save the life of a loved one. It is very important that a respondent is aware of the fact that the Marchman Act can be reimplemented whenever it becomes necessary. Hopefully, it will only be necessary to use just once.  

Introduction

The Florida Marchman act is a civil confidential legal proceeding allowing family, friends or any person with direct personal knowledge to help a loved one suffering with a substance abuse or a co-occurring disorder (both substance abuse and mental illness) refusing to help themselves.

Florida Law Title XXIX – Public Health – Chapter 397 is the specific statutory scheme better known as the “Florida Marchman Act”. The law does not distinguish between drug dependency and alcoholism using only the term “substance abuse.” The Marchman Act, confidentially through the court system, allows families and friends to compel their loved one to obtain treatment. The Marchman Act contains nine separate parts. Each part contains various laws ranging from providing definitions to issues regarding provider licensing. The complete statute and all of its contents can be viewed online.

There are two types of “parties” (individuals involved in the litigation of the matter). The person bringing or initiating the Marchman Act is the party known as the “petitioner” (there can be multiple petitioners). The individual refusing to obtain treatment and in need of services is the party known as the “respondent”. For the purposes of this instructional legal guide generally only parts I, III and V are relevant. Part V – INVOLUNTARY ADMISSIONS PROCEDURES is primarily most relevant and is the section used to obtain court orders for assessment, stabilization and treatment. With regard to Parts I – General Provisions – the pertinent section is Florida Statute 397.311 – Definitions. Florida Statute 397.501, Part III – Rights of individuals – provides a myriad of rights for respondents subject to being involuntarily ordered to under-go assessment, stabilization and treatment. The rights are all encompassing including a respondent’s right to counsel and medical record privacy.

The Marchman Act is a Florida law and can be used for only those respondent’s physically located in the State of Florida. The respondent does not have to be a Florida resident. The law specifically states a petition must be filed in the county where the respondent is physically located. The petitioner does not need to be physically located in Florida nor a Florida resident. Although the Marchman Act is a state law which applies to all parties, the law may be procedurally handled differently in various counties throughout the state. How to navigate the procedural methodology employed by the local court in the county where you will be filing your petitions will be further addressed where needed in these instructions.

Forms

Florida Statute 397 has various provisions indicating what content must be provided to the court in the petitions seeking involuntary treatment services. As of July 1st, 2024, there were various new amendments to the statute. Some of the changes effect what must be included in the Marchman Act Involuntary Services Petition. If the required information is not included, the Petition can be subject to dismissal. Currently there is no specific form formally developed by the Courts or state agencies for pro se use. Individuals seeking to petition the court on their own, known as “petitioners”, are also referred to as “pro se litigants” meaning they are not represented by counsel. We have developed a Petition for Involuntary Services form in full compliance and meeting all requirements as set forth in the current Marchman Act to be used after July 1st 2024. The form petition is made available to you in this instruction packet. If the county in which you are filing the petition does have its own form for pro se use simply take the information from the petition used as part of this manual and insert the information into the counties form. The requirements set forth in the statute as to what information should be included in a petition is the same for everyone so our petition and those created by a county should be very similar.

County Procedures

There are 67 counties in the State of Florida. Procedures differ from county to county. Despite the Marchman Act being a state-wide statute applying equally to everyone, each county has specific local procedures as to how a Marchman Act petition is procedurally moved through that counties court system. Once you, as the pro se petitioner, have followed these instructions, and filled out the petition you are seeking to file, you should at the time of filing speak with the local clerk (where you will be filing the petition) and become familiar with the local counties’ unique procedures.

Marchman Act Criteria

The general criteria the court must find based on the evidence you provide is the following:

Florida Statute 397.675 – Criteria for involuntary admissions, including protective custody, emergency admission, and other involuntary assessment, involuntary treatment, and alternative involuntary assessment for minors, for purposes of assessment and stabilization, and for involuntary treatment.

A person meets the criteria for involuntary admission if there is good faith reason to believe that the person is substance abuse impaired or has a substance use disorder and a co-occurring mental health disorder and, because of such impairment or disorder:

(1) Has lost the power of self-control with respect to substance abuse; and

(2)(a) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or

(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.

Ex parte and Live Hearings

The Marchman Act allows the court the option to either make an ex parte ruling, (if there are emergency circumstances), and enter an order for assessment and stabilization based solely on the contents of the petition (an “ex parte” proceeding) or schedule the matter for hearing. Either and/or both options must be done within 10 days of filing. If an emergency is alleged in the petition, the courts typically recognize the need for urgency and therefore enter the ex parte order on an expedited basis. The second phase of the Marchman Act (seeking an order directing the respondent to comply with any recommended services for a period not to exceed 90 days) will be set for hearing within 10 days of filing the Petition.

Circuit Court Judges and Magistrates

It is important to note the statute allows for the court to appoint a General Magistrate to hear Marchman Act proceedings. A General Magistrate is an attorney appointed by a judge to take testimony and recommend decisions on certain matters connected with the Marchman Act. These recommendations are then reviewed by the presiding circuit judge and are generally approved unless contrary to the law or the facts of the case. General Magistrates are typically used by the courts in high population counties. The problem you may encounter when a General Magistrate is used, is despite recommending that the petition be granted and an ordered entered, the law and statutes regarding the use of a general magistrate allow for an “exception” period. The exception period lasts 10 days and allows either party to file exceptions to the General Magistrates report and recommendation. If the 10-day exception period is not “waived” by both parties the circuit court is not allowed to enter the order until expiration of the ten-day period. If it is the Circuit Judge who is actually hearing the case the 10-day exception period does not apply. The statute governing the referral of a Marchman Act case to a General Magistrate does provide the all parties must accept the referral. If objected to, the magistrate is not permitted to hear the matter and it must be heard by the presiding circuit judge.

Filing the Petition for Involuntary Services

Necessary Definitions

The first step in gaining control and initiating a Marchman Act is to file the Petition for Involuntary Services. In this initial phase you are seeking to have your loved one literally assessed and stabilized (detoxed) and ultimately court ordered to follow treatment recommendations for a period not to exceed 90-days. Pursuant to 397.311(7) and (46) of the statute, “assessment” and “stabilization” respectively, are defined as:

“Clinical assessment” means the collection of detailed information concerning an individual’s substance use, emotional and physical health, social roles, and other areas that may reflect the severity of the individual’s abuse of alcohol or drugs. The collection of information serves as a basis for identifying an appropriate treatment regimen.”

And “stabilization” is:

“Stabilization” means: (a) Alleviation of a crisis condition; or (b) Prevention of

further deterioration”

Initiation and admission

When the court finds emergency circumstances exist and enters an ex parte order for assessment and stabilization, the court will also order law enforcement to pick up the respondent and deliver the respondent to the designated facility as indicated in the order. The newly amended section 397.6957(c)(1) states:

“The respondent’s assessment by a qualified professional must occur within 72 hours after his or her arrival at a licensed service provider unless the respondent shows signs of withdrawal or a need to be either detoxified or treated for a medical condition, which shall extend the amount of time the respondent may be held for observation until such issue is resolved but no later than the scheduled hearing date, absent a court-approved extension.”

In essence, the respondent can be held and detoxed for a time that cannot exceed the scheduled live court hearing date. Typically, the live hearing will be set 7 –10 days after filing. If the ex parte order was granted the pick-up, delivery, assessment and stabilization must be completed by the date of the live hearing. If any of the aspects of the ex parte order have not been completed by the live hearing date, the petitioner should attend the hearing at which time the court will schedule a new hearing date to allow for the completion of the ex parte order.

Who can be a petitioner?

The next step is to determine whether you are a person who has the legal ability to be a valid petitioner (or as lawyers put it – a person with “standing”). Here is the pertinent language of 397.68112 describing who can be a petitioner:

“(1) If the respondent is an adult, a petition for involuntary treatment services may be filed by the respondent’s spouse or legal guardian, any relative, a service provider, or an adult who has direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment. (2) If the respondent is a minor, a petition for involuntary treatment services may be filed by a parent, legal guardian, or service provider.”

As you can see from the language stated above, if the respondent is an adult, any adult can be a petitioner as long as the individual has “…direct personal knowledge of the respondent’s substance abuse impairment.” If the respondent is a minor, a petitioner can be only those individuals as stated in paragraph (2) above. You have standing to be the petitioner if you meet the qualifications as stated above. Please note there can be more than one petitioner listed. If there are more loved ones, friends or even medical providers that want to also act in the capacity as a petitioner they can do so. As you will see below their names simply need to be added to the Petition.

Contents of the Petition

397.68141 – Contents of Petition for Involuntary Treatment Services – states the petition must contain the name of the respondent, the name of the petitioner, the relationship between the respondent and the petitioner, the name of the respondent’s attorney, if known, and must state facts to support the need for involuntary services for substance abuse impairment. Facts must be stated in the petition supporting the following:

(1) The reason for the petitioner’s belief that the respondent is substance abuse impaired;

(2) The reason for the petitioner’s belief that because of such impairment the respondent has lost the power of self-control with respect to substance abuse; and

(3)(a) The reason the petitioner believes that the respondent has inflicted or is likely to inflict physical harm on himself or herself or others unless admitted; or

(b) The reason the petitioner believes that the respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care. If the respondent has refused to submit to an assessment, such refusal must be alleged in the petition.

(4) The petition may be accompanied by a certificate or report of a qualified professional who examined the respondent within 30 days before the petition was filed. The certificate or report must include the qualified professional’s findings relating to his or her assessment of the patient and his or her treatment recommendations. If the respondent was not assessed before the filing of a treatment petition or refused to submit to an evaluation, the lack of assessment or refusal must be noted in the petition.

(5) If there is an emergency, the petition must also describe the respondent’s exigent circumstances and include a request for an ex parte assessment and stabilization order that must be executed pursuant to s. 397.68151.

The Above section literally states what information is required to be in the Petition for Involuntary Services and should be reviewed carefully. We will provide you with specifics regarding the type of facts that should be stated in each section When we provide the step-by-step instructions regarding filling out the petition form.

Timing, court determination and facts

Pursuant to Florida Statute 397.68151 – Duties of court upon filing of petition for involuntary services – Upon the filing of a petition with the clerk of the court, the court shall immediately determine whether the respondent is represented by an attorney or whether the appointment of counsel for the respondent is appropriate and schedule a hearing within 10 court working days. Once the Petition is filed the court must determine whether there is a “reasonable basis” to believe the respondent meets the involuntary admission criteria of s. 397.675. When filing out the Petition it is important to give the court enough facts so the court can find there exists a “reasonable basis” that the respondent does meet the involuntary admission criteria. Your facts should generally include all known substances the respondent is believed to be using, specifically how why you know the respondent is using the substances, and the effect the substance abuse is having on the respondent. Also, if there is an emergency situation and circumstances exist to warrant the court to enter an ex parte order, you must state an emergency exists, you are seeking an ex parte court order and provide the court with facts of the emergent circumstances.

Instructions to fill out form for Petition for Involuntary Services

The “style” of the case

In the very top of the form you will find the following “style” of the case.

IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT

RESPONDENT

Every county in Florida is part of a Judicial Circuit. Some Circuits may be made up of only one county and other circuits consist of several counties. You can go to the below website provided by the Florida bar to find out which Judicial Circuit encompasses the particular county you are about to file in (remember you must file your Petition in the County where the respondent is physically located): https://www.floridabar.org/directories/courts/maps-circuit/

Enter the Judicial circuit number, the county and the full legal name of the respondent (this is the individual you are seeking to get help for). Since your petition is not filed yet there is no case number to insert. Once filed the clerk of the court will provide the case number.

Petitioner and Respondent Information

In the next following paragraph, you will insert your name as the petitioner (and any other names of individuals seeking to be a petitioner as well), the name of the respondent, and provide his/her exact age. You must also indicate the nature of the relationship you (and any other petitioners listed) have with the respondent. Be specific.

I/we (insert Petitioner(s) names) ________________, as (insert relationship to Respondent, i.e. Mother, Father, Spouse, Friend) hereby state that as the Petitioner(s) in this matter do hereby seek and request the Respondent (insert Respondent’s name) __________ , age ____ under-go court-ordered involuntary treatment and in support of said petition, and having direct personal knowledge regarding the respondent’s substance impairment and prior course of assessment and treatment, would state as follows:

Paragraphs 1 and 2.

Here if you are asserting to the court emergency circumstances exists warranting the court enter an ex parte order as described previously you must check off the blank.

1) ______The Petitioner is asserting an emergency exists and is requesting an ex parte order be issued directing law enforcement to pick up the Respondent and transport the Respondent to the nearest designated treatment provider or any provider designated by the Court. The exigent facts supporting the emergency request are stated below.

1. a) Facts indicating emergency circumstances for an ex parte order: __________________________________________________________________

2) ______The Petitioner is NOT stating an emergency exists and requests this matter be set by the court within ten (10) days.

It is extremely important that you clearly indicate to the court if an emergency exists warranting the court to take immediate action. The petitioner must clearly and concisely describe the emergency. Simply stating “the respondent is abusing substances” does not describe an emergency situation. An emergency situation can be described as “the respondent is driving while impaired everyday endangering himself/herself as well as others” or “the respondent has recently overdosed and immediately continued to abuse substances putting his/her life in jeopardy”

Paragraph 3

Paragraph 3 and its subparts requests specific information. Each subpart is in essence a breakdown of the Marchman Act criteria and what the court needs to find and substantiate the basis of the 90-day order. You may find some factual information may be relevant to various subparts. Generally, try to include how long the respondent has been suffering with substance abuse and any co-occurring disorder (an associated mental health issue). Also, you should separately describe the length of time and significant nature of the respondent’s recent abuse. For example, “The respondent has a long history of substance abuse for over the past five years (describe) or “Recently, over the past several months, the respondent’s abuse has grown significant and out of control.”

Paragraph 3(a) 

Paragraph 3(a) seeks facts as to why you the petitioner believes the respondent is substance abuse impaired. The definition of “substance abuse impaired” pursuant to F.S. 397.311(19) is:

“ ‘Impaired’ or ‘substance abuse impaired’ means having a substance use disorder or a condition involving the use of alcoholic beverages, illicit or prescription drugs or any psychoactive or mood-altering substance in such a manner as to induce mental, emotional, or physical problems or cause socially dysfunctional behavior.”

Facts provided in your answer should be focused “how” the use of substances have created a “condition” resulting in “mental, emotional, or physical problems and cause socially dysfunctional behavior.” For example, “The respondents continual use of (describe substances used) causes the respondent to become delusional (describe) and verbally or physically aggressive toward family or others (describe instances)”, “The respondent’s use of (describe substances used) causes the respondent to repeatedly fall, not eat and neglect and endanger themselves (describe condition)”, and “The respondent’s use of (describe substances used) causes the respondent to endanger himself and others as the respondent is known to operate a motor vehicle while under the influence of (describe substances used).”

Paragraph 3(b)

Paragraph 3(b) asks for you the petitioner to provide facts why you believe the respondent “…has lost the power of self-control with respect to substance abuse…” There is no definition of “self-control” provided in the statute for guidance. The general definition of self-control is: “restraint exercised over one’s own impulses, emotions, or desires”. Utilizing this definition, facts indicating the respondent cannot control various aspects of their daily lives whether while under the influence or not should be stated. Even if sober an individual who is substance impaired still can be suffering from a lack of self-control. General facts substantiating a lack of self-control can be, continuous substance use, self-neglect (failing to eat, failing to engage in self-hygiene, being non-functional regarding various aspects of the necessities of daily living), driving while impaired, and instances of verbal or physical aggressive behavior.

Paragraph 3(c)(1)

Paragraph 3(c)(1) seeks the “reason the petitioner believes that the respondent has inflicted or is likely to inflict physical harm on himself or herself or others unless the court orders the involuntary treatment.” Obviously, the actual use of substances, whether legal or not, to a point of abuse is indicative of an infliction of harm. You should focus on those facts that are indeed causing physical harm. Physical harm or the potential can result simply from malnutrition, self-neglect and falling. Facts of driving while impaired supports “has inflicted or is likely to inflict physical harm on himself or herself or others”. Perhaps your loved one is suffering not only with a substance abuse impairment but also a mental health disorder. Here you can describe how the substance use/abuse is negatively affecting and worsening the existing mental health disorder. Perhaps your loved one has stopped their required psychotropic medication and is attempting to self-medicate with the substance and/or substances they are abusing. Perhaps their substance impairment has led to their specific inability to manage their daily affairs, employment, relationships and exposes them to exploitation (economic, emotional or physical).

Paragraph 3(c)(2)

Paragraph 3(c)(2) seeks “The reason the petitioner believes that the respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care”. Your answer should provide facts indicating, based on the information you already provided, the respondent is refusing to seek any type of help after being requested to do so. Perhaps the respondent has walked away from detox or treatment within a short period of time and immediately started to use and/or abuse substances now or in the past and has no insight therefore refusing to seek treatment. It is important to note in the answer specifically if the “refusal to care” has been continuous while the respondent has been using/abusing substances and the condition has only been worsening over time. You should provide facts indicating their continuous impairment prevents he/she from making any rational decision. An example would be an individual hospitalized due to substance use (i.e. overdose or alcohol poisoning) and due to their impairment still refusing to recognize their need for treatment.

Paragraph 4

Paragraph 4 seeks the name of the respondent’s attorney, if known. This is required by statute to be included in the Petition. In almost all instances it will be unlikely that the respondent knows about the filing of your Petition, obtained an attorney and disclosed the name of that attorney before filing. So, here in the Petition simply indicated “unknown”.

Paragraph 5

Paragraph 5 seeks required information per the statute. Specifically, it must be indicated in the Petition whether the respondent was assessed before the filing of a services petition and/or refused to submit to an evaluation. If the respondent was assessed before the filing by a qualified professional within the last thirty days and you actually have that assessment, you should attach the assessment to the Petition. In most cases the respondent had never acquiesced to an assessment prior to the necessity of filing a Petition for Involuntary Services.

Paragraphs 6 and 7

Paragraphs 6 and 7 is simply language perfecting the Court’s jurisdiction and stated the relief per the statute. There is no requirement or need to change or modify this language in any way. Just let it be.

Attestation Section

The very last section of the petition requires you to “swear and affirm” to “direct personal knowledge of the factual statements” in the Petition and that said statements are “true and correct”. DO NOT MAKE UP INFORMATION THAT SIMPLY DOES NOT EXIST. Perjury is a serious crime which has significant penalties. If the situation is desperate enough to bring you to the point of seeking a Marchman Act, the truthful facts will surely support and be enough for the court to grant your petition. As long as you are being honest regarding your knowledge of the information stated in the petition and are acting in good faith there is nothing to worry about. As you can see below, the statute grants various protections for those acting in good faith. F.S. 397.501(10) – LIABILITY AND IMMUNITY specifically states:

(b) All persons acting in good faith, reasonably, and without negligence in connection with the preparation or execution of petitions, applications, certificates, or other documents or the apprehension, detention, discharge, examination, transportation, or treatment of a person under the provisions of this chapter shall be free from all liability, civil or criminal, by reason of such acts.

Using other designated county forms

If you are using a different form developed and used in a specific county the questions seeking information while potentially worded differently will still seek the same information you gathered and provided in the form used as guidance in these instructions. You should provide the same information into the specific form required by the specific county. The bottom line is the statute states what must be provided as content in the petition. Regardless of how the form is drafted the required content is the same.

Filing the Petition for Involuntary Services.

Once you have fully completed the form Petition for Involuntary Services you are now ready to file it. You will need to go to the clerk’s office in the county where the respondent is physically located. Typically, it is the Clerk of the Probate Division that accepts Marchman Act filings. Once the clerk has accepted your Petition there is some information you want to obtain from the individual clerk you are dealing with. Here are some questions you should be asking for information potentially needed in the future:

1. If the Court deems an emergency condition exists, when will the court issue an ex parte order to have the respondent picked up by local law enforcement and taken to a facility for assessment and stabilization?
2. In the alternative when will the court schedule a hearing and who will the serve the respondent to appear at the hearing?
3. What facility will the court require the respondent to be brought to or go to for assessment and stabilization?
4. Will the assessing provider file its completed assessment with the clerk to be used at the treatment hearing?
5. Will the clerk allow you as the petitioner to obtain a copy of the filed assessment?

The above information is important to ask and record. The answers they provide will guide you with regard to the next steps you should be doing to adhere to the local procedures. You want as much

information you can get including contact information.

Ultimately your loved will either be served with the Petition for Involuntary Services and a Notice of Hearing (for the live hearing) or your loved one will be picked up by law enforcement and brought to the designated facility for assessment and stabilization and served with the Petition, order (if the Petition is granted ex parte) and the Notice of Hearing.

Hearing on Petition for Involuntary Services

When you filed the Petition for Involuntary Services you will have been provided with the courts notice of hearing indicating the date and time of the hearing. Should the respondent not show up at the schedule time and place for the hearing, after being served with a summons to appear, the court will proceed with the hearing. If the respondent was served to appear at the hearing and does not attend, you should insist that the hearing move forward. Once at the hearing, if all parties are present, the court will first inquire of the respondent if the respondent desires an attorney to represent him/her (if respondent is present). If so, and the respondent is indigent, the court will appoint an attorney from the Office of Regional Conflict Counsel. Many times, after the appointment, regional conflict counsel will speak with the respondent and determine if they are either willing to agree to the entry of the order without hearing or if the respondent wants to fight the petition. If an agreement can be reached the order will be entered and the respondent will be sent off to be assessed and stabilized (if there was no emergency exparte order entered) and a new hearing date for determination of the entry of a 90-day treatment order. If the respondent was assessed and stabilized pursuant to an ex parte order entered earlier, the respondent can agree to the entry of a 90-day order or proceed with the evidentiary hearing. If no agreement is reached, then the court will typically immediately move forward with the evidentiary hearing. The court will then seek testimony from you and any other witnesses you may have. Your testimony and any witness testimony will be subject to cross examination. Once completed the court will then entertain any evidence and testimony from the respondent (if present). At the conclusion of the hearing the court will either grant or deny your petition. If granted an order will by entered.

The petitioner has the legal burden of proving the petition for involuntary treatment services by and through clear and convincing evidence. Clear and convincing evidence has been interpreted by Florida Courts to require that the evidence be found to be credible. The evidence must be of such weight that it produces in the mind of the trier of fact (the court) a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. At a hearing on a petition for involuntary treatment services, the court shall hear and review all relevant evidence, including the review of results of the assessment completed by the qualified professional.

Proving the Petition

Pursuant to Florida Statute 397.6957, the petitioner has the burden of proving by clear and convincing evidence:

“(a) The respondent is substance abuse impaired and has a history of lack of compliance with treatment for substance abuse; and

(b) Because of such impairment the respondent is unlikely to voluntarily participate in the recommended services or is unable to determine for himself or herself whether services are necessary and:

1. Without services, the respondent 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 there is a substantial likelihood that without services the respondent will cause serious bodily harm to himself, herself, or another in the near future, as evidenced by recent behavior; or

2. The respondent’s refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care.”

The court shall allow testimony from any individual, including family members and friends, deemed by the court to be relevant under state law, regarding the respondent’s present condition, prior history and how that prior history relates to the person’s current condition. The testimony in the hearing must be under oath, and the proceedings must be recorded. The respondent may refuse to testify at the hearing. At the conclusion of the hearing the court shall dismiss the petition or order the respondent to receive involuntary services from his or her chosen licensed service provider if possible and appropriate.

Granting the Petition for Involuntary Services and the Court Order

If the court grants the Petition for services, it will enter an order. Although the content of services orders varies from county to county, generally the order directs the respondent to undergo and comply with services for a period not to exceed 90 days. The court will also designate a provider for those services. The court is typically not concerned with who the respondent seeks service with or the level of care. The court is there to ensure compliance. The statute does allow the respondent the ability to be involved in the choice of provider as long as the provider is “licensed and appropriate”. Typically, after a hearing and an order entered, the respondent simply had not even given any thought as to where he/she would like to go for substance abuse treatment. If the respondent has private insurance, and/or the ability to self-pay, or some other payment source is available, a private service provider can be engaged for treatment. Should there be no ability to pay for a private provider the court will order the designated provider be the local government funded substance abuse treatment provider in the area.

Once the order is put in place it is the responsibility of the respondent to be compliant with the mandates of the order. The respondent will be expected to obtain and accept services until such time that the “conditions justifying involuntary services no longer exist” or put another way – when the respondent no longer meets Marchman Act criteria. There are two very important aspects of this section of the statute to note. First, the order can be extended beyond the 90 days. Second the court retains jurisdiction over the case and the parties for the entry of such further orders as the circumstances may require. These two aspects allow the petitioner to extend the services order if warranted, and most importantly, to ensure compliance.

Extension of Services/Treatment Order

Florida Statute 397.6975 – “Extension of involuntary services period” – specifically allows for the original court order for services to be extended for up to another 90 days. The statute specifically states:

“(1) Whenever a service provider believes that an individual who is nearing the scheduled date of his or her release from involuntary treatment services continues to meet the criteria for involuntary services in s. 397.68111 or s. 397.6957, a petition for renewal of the involuntary services order must be filed with the court before the expiration of the court-ordered services period. The petition may be filed by the service provider or by the person who filed the petition for the initial treatment order if the petition is accompanied by supporting documentation from the service provider. The court shall immediately schedule a hearing within 10 court working days to be held not more than 15 days after filing of the petition and the notice of the hearing to all parties and counsel to the proceeding. The hearing is conducted pursuant to ss. 397.6957 and 397.697 and must be held before the circuit court unless referred to a magistrate.”

Typically, a provider does not seek an extension. They are not a petitioner in the case and do not want to put themselves in a position of conflict with the very person they are treating. You, as the petitioner can and should file for an extension of the original court order should the respondent continue to meet Marchman Act criteria. You should make every attempt to determine if the service provider believes the respondent does continue to meet the necessary Marchman Act criteria needed to support the extension request and whether the extension is warranted.

If it is decided to move forward with the extension request, the Petition for the Extension must be filed “…with the court before the expiration of the court-ordered services period”. The petition must be accompanied by supporting documentation from the service provider. Any documentation will do – even an email. If you do not have the supporting documentation, it is advised that you file the request anyway. Once filed, the clerk will issue a notice of hearing. It is very important that the provider be subpoenaed to appear and testify or be willing to do so voluntarily. You will absolutely need the provider’s testimony indicating the order should remain in place and that the respondent does still meet the original Marchman Act criteria used to obtain the original order. Within these instructions (or click here) you will find a Petition for extension form. The form is self-explanatory and based on your prior experience filing out the original petition you should have no problem.

Enforcement of the Court Order – Civil Contempt of Court

Generally, every court order entered, whether it be for assessment and stabilization or for services, directs the respondent to comply with the services recommended and needed. The language and content of the court order usually differs from county to county. However, the burden and responsibility to under-go the services ordered is placed upon the respondent. If the respondent fails to be assessed, stabilized or under-go services as ordered, the respondent can be held in civil contempt of court. Examples of a failure to comply with a court order are once ordered to be assessed and stabilized the respondent leaves the facility against medical advice, the respondent does not otherwise follow the instructions of the provider, the respondent while in long term treatment pursuant to a services order, either simply does not go, leaves, stays and is disruptive and/or the respondent is discharged based on not following the rules, recommendations and/or regulations of the treating provider. Generally, a lack of compliance of with recommended treatment can be the subject of contempt and brought to the court’s attention.

Since the Marchman Act is a civil proceeding the non-compliant respondent is subject to the court’s civil contempt power. Civil contempt is designed to compel an individual to comply with an order of the court. As a result, should a respondent be held in contempt they can avoid the potential consequence of incarceration, or be released form incarceration, by simply telling the court they are willing to go back and engage in treatment and be compliant.

The ultimate sanction for non-compliance, after being found to be in civil contempt of court, can be incarceration. The incarceration is not like a criminal sentence which would have a time period attached and the person released upon its expiration. If one is found to be in civil contempt and ultimately incarcerated, to be released they must be brought before the court and indicate their willingness to be compliant with the court’s order – thus availing themselves of the purge provision. If they refuse, they can literally sit in custody and be treated in jail (if services are available and ordered by the court). The maximum the court can hold someone refusing to avail themselves of the purge provision is up to 6 months.

Since a respondent’s freedom is potentially at stake they are entitled to full due process of the law. Due process entails that a motion must be filed alleging the contemptuous conduct, a hearing must be scheduled, and the respondent must be individually served with the motion for contempt and the notice of hearing (summons). Ultimately the court will have a hearing on the matter. If the respondent has gone back to treatment and is compliant with the existing order obviously there is no longer a need to have the respondent held in contempt. However, if the respondent is not in compliance with the order, and after being properly served does not attend the hearing, the court will generally move forward with the hearing. If the non-appearing respondent is held in contempt the court has the authority to order the respondent be taken into custody by law enforcement.

Within these instructions you will find a Motion for Contempt form. The form is self-explanatory and based on your prior experience filing out the Petition you should have no problem. Once you, the petitioner, have filed the Motion for contempt form you should inquire with the clerk, what if any action will be taken to have them served with the motion. It is imperative that the respondent be individually served with the motion and notice of hearing (summons). Many times, the respondent may be at a location other than the designated provider or the original address where they were located when the Marchman Act was initiated. YOU MUST HAVE THE REPSONDENT INDIVIDUALLY SERVED – therefore you must know their whereabouts. It is strongly recommended once their physical location is determine that the respondent be served using a private process server. Private process servers can be located easily online and the clerk of the court may even provide you a referral to one. Once the private process server actually individually serves the respondent they will file and provide you with the “return of service” document indicating the respondent was served with the documentation. Remember, without proper service, the court cannot proceed to act on your Motion for Contempt.

The Closing of the Marchman Act Court Proceeding

While the Marchman Act remains open the parties are subject to the court’s jurisdiction. The following are ways a Marchman Act proceeding can end:

1) Should a case be initiated, and the petitioner no longer pursue or “litigate” the matter (i.e. not attend hearings or file the necessary forms) the matter will ultimately be dismissed by the court.

2) Should any entered order expire and further requests for services/treatment not be filed and/or requested the matter will be dismissed at the expiration of the period as set forth in the last court order.

3) Upon the request of the petitioner at any time for the matter to be dismissed.

4) Should proof be provided to the court that the respondent no longer meets Marchman Act criteria.

Should any of the above acts or conditions arise the Marchman Act proceeding will close, and the court’s jurisdiction will end. The beauty of the Marchman Act is there is no limitations as to the number of times the Marchman Act can be filed and utilized to save the life of a loved one. It is very important that a respondent is aware of the fact that the Marchman Act can be reimplemented whenever it becomes necessary. Hopefully, it will only be necessary to use just once.