Guardianship & Mental Health

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  • What is a guardianship?

    Guardianships are legal proceedings in Florida in which a guardian is appointed to represent the rights of a minor or incapacitated person.
  • What is the Marchman Act?

    The Clerk's Mental Health Division maintains court records when a person is involuntarily committed for the treatment of substance abuse.

    The legal process that is commonly referred to as The Marchman Act.

    The Marchman Act allows family and friends to petition the court to obtain an involuntary assessment and treatment for a substance abuser. First, a Petition for Involuntary Assessment is filed, and if the court enters an Order for Involuntary Assessment, the patient is taken to a facility licensed by the Department of Children and Families. Within five days, the court will receive a written assessment and can proceed with the Petition for Involuntary Treatment. At the hearing, if the court issues an Order for Involuntary Treatment, the patient can be admitted to the facility for a period not to exceed 60 days.

    Family Court Services can assist you with filing the Petition for Involuntary Assessment. The Service Provider, usually Southwest Florida Addiction Services may assist with the filing for the Petition for Involuntary Treatment.

  • How do I petition the court for a Baker Act examination?

    A petition for an ex-parte order is available at the Probate Department. For an order to be issued allowing law enforcement to transport a person to a receiving facility for an involuntary psychiatric examination, all of the following must be met:

    • there must be reason to believe that the person is mentally ill
    • because of the illness, the person has refused a voluntary examination after being asked by the petitioner
    • without care or treatment the person will harm himself/herself or another
    • the petitioner must have observed the behavior of the person
    • the person must be physically located in Lee County and the petitioner has to supply a valid location for service

    The petitioner must bring valid photo identification with a signature, such as a driver license/ID, passport, or resident alien card.

    There is no filing fee for this petition. The facility will arrange for the examination within 72 hours.

  • How is a guardian Appointed?

    An individual, through their attorney, files for a guardian to be appointed for a minor or an adult who is not mentally capable of taking care of himself/herself. When a guardianship petition is filed on an adult, an accompanying petition to determine incapacity is simultaneously filed as a separate proceeding in the Probate Department. The court will appoint a committee to evaluate the person and file their report with the court. The exception to this would be a guardian advocate petition. These petitions are for persons who are developmentally disabled. With these petitions, there is no requirement for the ward to be examined by a committee. Therefore, there will be no accompanying Mental Health file. Guardians can be appointed as guardian of the person only, property only, or person and property.

    Guardianships are also filed for minors when the minor child has inherited money or property in excess of $15,000 from a deceased relative, or received money from a settlement in excess of $15,000. In this case, a guardian of the property is all that is needed if the minor child's parents are living. If a minor child's parents are deceased or unable to be appointed guardian, he/she may need a guardian of the person and property.