Florida Marchman Act

August 31, 2011 — Leave a comment

Legal Approaches to Substance Abuse

There are few challenges greater than watching a loved one descend into the depths of drug and alcohol abuse. Lives can be shattered, fortunes squandered, aptitude and potential wasted, and relationships often strained to the breaking point. The damage is two-fold: the abuser’s self-destructive behavior not only hurts his or her own life, but unintentionally inflicts harm on friends, families, coworkers, and neighbors. Those forced to watch the slow cycle of despair are all left asking the same questions — Is there anything I can do to help? Is there any way to stop the downward spiral?

To paraphrase Seneca the Younger, substance abuse is voluntary madness. It is this approach to alcohol and drug addiction that is embodied in Florida’s Marchman Act.

For almost two decades, Florida has moved away from treating the addict as a criminal (a law enforcement solution) towards dealing with the underlying problems of substance abuse and addiction (a treatment solution). In 1993, Florida created an effective framework for families, health care professionals, and the courts to work together to help heal those suffering. The Marchman Act (Fla. Stat. Ch. 397. et seq., (2010)) is Florida’s roadmap for court-ordered treatment for substance abusers. The Act is similar in nature to the prior Baker Act (Fla. Stat. Ch. 394. et seq., (2010)), which addressed legal issues regarding treatment and behavior of the mentally ill. The two Acts, although separate and distinct, both recognize patterns of socially-prohibited conduct which the legislature now acknowledges as the product of disease rather than a mere lack of morality, and both work in tandem to treat the suffering. Indeed, in many cases substance abuse and mental health issues travel hand-in-hand, implicating both Acts. While in the past, the Florida judicial system gave those addicted a one-way ticket to prison for their affliction, the law now reflects a greater understanding of addiction and provides a path to rehabilitation.

In brief, the Marchman Act grants family members or concerned friends a mechanism for filing a petition, requesting assessment or treatment, with the circuit court in the county where the abuser is located – not necessarily where they reside. The criteria for involuntary admission of one abusing substances are (1) that there must be a “good faith reason to believe the person is substance abuse impaired,” (2) because of such impairment, the abuser has lost the power of self-control, and (3) the abuser either poses a physical threat to himself or others, or is otherwise in need of serious help because his judgment has been so impaired that he can’t appreciate his own predicament.

Once these petitions are filed with the court, judicial action may be taken on an expedited basis. A judge will typically hold a hearing within a few days (and in extreme cases, the same day) to determine if there are sufficient grounds to order either a five-day involuntary assessment of the magnitude of the individual’s substance abuse issues or, alternatively, a sixty-day commitment to treatment. Relief may be granted on an ex parte basis; that is, without the abuser’s presence at a hearing. In many cases, the family will begin by asking for, and courts appear willing to order, the five-day assessment, which will often justify the subsequent sixty-day treatment. If the individual against whom the action is brought does not have an attorney, the Court will appoint a public defender to represent their interest. In rare cases, the public defender will consent to the relief being sought after meeting the individual. In others, the public defender may put up little to no fight in opposing the relief being sought. However, in many cases, the respondent will refuse treatment and fight the involuntary assessment and/or the commitment.

The right of the substance abuser to have adequate representation at the hearing is important for two key reasons. First, taking away a person’s liberty through involuntary treatment poses serious questions that go to the heart of our democracy. The laws were not written to be haphazardly applied, and without this safeguard, Constitutional protections could fall by the wayside. Second, the abuser’s representative will work hard to prevent the assessment, or commitment to treatment, if the abuser does not consent. This is where having competent attorneys on your side matters most.

Sworn testimony will be given by the loved ones or concerned friends, and there will be an opportunity for cross examination. The court will look specifically for mental, emotional, or physical problems, and for socially dysfunctional behavior. Those behaviors are not defined in the Act, but can include the following: DUI; nonviolent crimes; domestic violence; public intoxication; withdrawing from family and friends; unexplained absences from home or work; or failure to pay bills or maintain steady employment. Your attorney can help you use your personal experience with your loved one’s substance abuse and behavior to guide you in presenting the most effective case to get the help that your loved one needs.

A holistic approach involving treatment professionals and a legal team is often the best path to getting the appropriate care for your loved one. While the addiction professional can often identify the appropriate level of treatment needed for the respondent, such professionals tend to have backgrounds in medicine, counseling, or addiction, and not in the law. Regrettably, most lawyers have not gone to medical school, and lack the ability to identify the symptomology of addiction. The opportunity for court-sanctioned help granted by the Marchman Act, as part of a well-conceived intervention plan, might be the wake-up call the abuser needs to get a fresh start. Your legal team will not only be concerned with filing the petition and representing your family at hearings, but will provide other assistance beyond the Marchman Act.

Individuals suffering from substance abuse-related issues might, as a result, use their assets to their detriment. They may make bad financial decisions, bankroll their addictive tendencies, and squander family assets. Careful attention should be given to financial decisions undertaken while under the influence of drugs or alcohol. Any estate planning undertaken may be invalid, and transfers made to third parties may be reversible, where the executing party lacked capacity to make legal decisions. Your attorney may be able to freeze the assets of the abuser and prevent him from doing any more harm to himself or others. If the substance abuse and dependency has progressed far enough, perhaps a guardianship over his person or property will be necessary.

Knowing your options in these situations is invaluable. Confronting your loved one’s substance abuse will be the most challenging chapter in your family’s life, but having the right support can make all the difference. The bright side of voluntary madness – an irrational choice — is that the victim often has the capacity to make the voluntary, rational choice to heal. The proper plan and team on your side can help the victim make the right decision.

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