Guardianship & Mental Health

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  • What is a Guardianship?

    A guardianship exists when the court appoints a person (the guardian) to exercise all or some control over another individual's person and/or property. The appointment is usually made when an individual (the ward) is incapable of managing his or her own affairs.

  • 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.

  • What is a Guardian Advocate?

    Parents no longer have the legal authority to make decisions for their children after they turn 18 years of age.  Guardian Advocacy is a process for family members, caregivers, or friends of individuals with a developmental disability to obtain the legal authority to act on their behalf. This is accomplished without having to declare the person with a developmental disability incapacitated. Guardian Advocate appointments are governed by Florida Statute Section 393.12.  

  • What are the qualifications to serve as a Guardian?

    Any resident of this state who is not under any legal disability or the power of another and is 18 years of age or older is qualified to act as guardian of ward. Further qualifications can be found in Section 744.309, Florida Statutes
  • What are the responsibilities of a Guardian?

    This depends upon the type of guardianship that has been established and the nature of the ward’s incapacity or needs. Each guardianship is tailored by the Court in relation to the needs of the ward. A guardian can be appointed to watch over the ward, or the ward’s property, or both.
  • Who monitors the Guardian to ensure that he or she does not take advantage of the ward?

    A guardian is required to submit periodic reports regarding the condition of the ward and/or the ward's assets. The Clerk's Office is responsible for the initial review of these reports. After the reports are audited by the Clerk, they are taken to the general master for review, then to the presiding judge. If it appears that the guardian is not performing his or her duties properly, the court will take the necessary steps to protect the ward and/or the ward’s assets.
  • Are Baker Act cases confidential?

    Yes. Pursuant to Florida Statute 394.464 and Rule 2.420, these case types are confidential and not accessible by the general public.

  • 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.

  • Can I baker Act or Marchman Act an individual more than one time?

    Yes. Anytime you feel an individual is a danger to himself, herself, or other, you may initiate these procedures.

  • What happens once an individual is taken to the facility?

    The patient is further examined and a determination is made as to whether they need further treatment. The patient may be held for up to 72 hours at the facility. Then, one of three things must happen: 1) the facility must discharge the individual; 2) the facility must allow the individual to sign in voluntarily (if the individual is able to consent); or 3) the facility must file a Petition for Involuntary Placement, and request a hearing.
  • 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.

  • Will the person know I did this?

    Yes. The Lee County Sheriff’s Office serves the person with a copy of the petition and the order entered by the Judge. The mental health receiving facility is also provided copies and they become a part of the person’s records at that facility. If the patient requests to see his or her records, the facility must allow access.