What is the Marchman Act?
Deeply useful yet unknown to most attorneys, the Marchman Act offers people in the state of Florida an option to help loved ones who struggle with substance abuse.
Below, Kelly D Feig outlines the purpose of the Marchman Act and the aid it can provide to families.
What is the purpose of the Marchman Act?
The Marchman Act is a civil – not criminal – procedure. It is a Florida statute that enables families or friends to petition the court for mandatory assessment and treatment for someone who is abusing drugs or alcohol and has lost the ability to appreciate that they have a problem. The proceedings are confidential and are usually conducted as part of the mental health division of the court. I can help people residing outside of Florida as long as they are within the borders of the state when they are served.
What important factors should attorneys be aware of before petitioning the court for intervention via the Marchman Act, and what does the process involve?
The Marchman Act is primarily for chemical dependency and substance abuse. It is used for involuntary assessment and treatment with initial assessment order for up to five days and successive treatment orders of up to 90 days. This is different than the 72-hour hold many states have implemented primarily for mental illness when someone appears to be a danger to themselves or others.
Attorneys should be aware that this is a two-step process. The Marchman Act process begins by filing a Petition and Request for Assessment and Stabilisation (Detox) and/or Treatment. Once the court has reviewed this petition, either through an ex parte process (no hearing required) or an actual hearing before the court, a court order may be entered. The respondent may be court-ordered to immediately go to a facility that has been pre-determined for completion of the assessment/stabilisation/detox or be picked up by law enforcement and delivered by them to the nearest facility as ordered by the court for the assessment/stabilisation/detox. Following this, the treatment providers will render their assessment and make a recommendation for treatment to the court.
The Marchman Act is a civil – not criminal – procedure.
The client must understand that the attorney and the court officials cannot dictate the level of care and have no influence on the level or type of treatment the respondent will receive. The trained professionals base their treatment recommendation and the level of care based on the respondent’s needs. Typically, treatment is outpatient treatment, day-treatment, intensive outpatient treatment and/or residential treatment. It is the obligation of the client and the client’s attorney to enforce the order of the court upon the respondent.
The next step in the Marchman Act process is the filing of a Treatment Petition by the lawyer if one has not previously been filed and is warranted. Some counties in Florida require the assessment facility to file the second petition, so the lawyer should review the local rules in each county before filing. The court will review this petition and the treatment recommendation by the clinician to decide whether to order the respondent to comply with this recommendation. If the court orders treatment, the order will be in place for a minimum period of 90 days. Substance abuse treatment is either paid for privately (cash) or through pre-existing personal insurance plans. If neither the respondent nor the client has the ability to pay for treatment, the only treatment alternative is typically the use of a county or government-funded indigent program.
Are there any particularly common pitfalls that can be encountered when filing a Marchman Act petition?
If a treatment order has been entered and the respondent is non-compliant in any way, the attorney should file a Rule to Show Cause with the court and bring the respondent before the judge for violating the court order and seek sanctions. Generally, if this occurs, the judge will have a hearing, and if proven, give the respondent one more opportunity to return to treatment and comply with the court order to avoid incarceration. Should the respondent yet again fail to comply with the court order they will be found in civil contempt and possibly incarcerated until they are ready to return to treatment.
It is important to note that serving time for contempt does not invalidate the existence or duration of the original order for treatment. The respondent must continue treatment pursuant to the original order subsequent to being released from custody.
The client must further understand that, although the respondent is recommended at one particular level of care during the assessment, the clinicians may increase or decrease the level of care at any time. Often, a respondent, based on their participation (or lack thereof), may start at one level of care, but subsequently need a higher or lower level of care based upon their participation in the treatment process. This is not uncommon and should be expected. Prior to the end of the 90-day treatment period, should the respondent still meet Marchman Act criteria, based on a medical professional’s recommendation, an extension can be filed for up to an additional 90 days.
It is important that attorneys (or individuals petitioning) be aware of the deadlines for filing so that the court does not lose jurisdiction. Once jurisdiction is lost, the process must start from the beginning. One way to avoid this pitfall is review the statute and the local rules. Another action attorneys can take is setting a status conference every two-weeks (even if the respondent enters treatment voluntarily and there is no order) so the court maintains its jurisdiction.
You have mentioned that few attorneys seem to be aware of the Act. Why do you think this is?
It is curious. When I mention the Marchman Act to other attorneys, many have no idea what I am talking about and are surprised. I think that addiction is stigmatised as a sign of weakness, but this could not be further from the truth. The majority of those that overdose are regular people that were prescribed a very addicting medication. I began my journey into this area of the law out of necessity – I have a family member that suffers from addiction. As a family we tried everything from religion to geographical cures to equine therapy. At no point did anyone advise us about the Marchman Act. Even when I would call a treatment centre and express my desire to send my loved one and explained his unwillingness, no one suggested I had an option through the courts. Even after I became aware of the Marchman Act as an attorney, I feared exposing my loved one to the court system. Out of desperation and a very real fear of losing him, I finally filed my first petition.
When I mention the Marchman Act to other attorneys, many have no idea what I am talking about.
The statute has been a Godsend. While it is not a magic bullet, every day that a person is clean and sober is an opportunity for them to heal – and I believe everyone has the ability to heal.
Under what circumstances would you recommend that a Marchman Act petition be filed?
Florida has personal jurisdiction over anyone within the borders of the state. The beauty of this act is that as long as someone steps foot in the State of Florida we can attempt to obtain jurisdiction for the purposes of getting them help through the Marchman Act. I suggest that anyone anywhere that fears their loved one has lost control over drugs and alcohol reach out to our firm to discuss their options and whether the Marchman Act is the answer for their family.
Kelly D Feig, Founder
The Law Office of Kelly D Feig, PA
Address: 2410 NE 10th Street, Hallandale Beach, Florida 33009
Telephone: (305) 979-2488
Kelly D Feig
My name is Kelly Daniela Feig and I am a solo practitioner working in South Florida. I graduated from the University of Miami School of Law with honours in 2007 and have transitioned my practice to focus in the areas of probate (administration and litigation), guardianship, and mental health (specifically Marchman Acts). I do not regret leaving the big firms as my practice allows me to give zealous but personal and compassionate representation to my clients without worrying about billable hour requirements and firm politics. While the probate area of my practice deals with lives lost, the Marchman Act area of my practice affords me a role in saving lives; every day I get to help families and friends save the life of someone they care for and love and that is priceless.