Monday, June 7, 2010

Marchman Act Visitor Question - The Family Guide to the Florida Marchman Act

Anonymous asked:

Can only a parent file a Marchman act against a person? Can an aunt file? Sunday, June 06, 2010..
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ARLS Answer:

First, let me say thank you for asking this question. It is a very important question because "standing to proceed" is the front door to any civil pleading - without standing, that door is locked to you.

Before I answer your question, however, I would like to acknowledge the fact that "The Family Guide to the Florida Marchman Act" post has received the most questions of any post made since the inception of the Marchman Act Blog on July 31, 2009. The reason for this is quite understandable. Our office fields calls on a daily basis from all around the nation from families just like yours; families out there in need of answers, who are researching and seriously considering filing the Florida Marchman Act in order to intervene on behalf of a drug/alcohol addicted family member. In all of these cases exists one common denominator; a friend or family member who simply will not accept or seek out help on their own. It is that inability to accept help or outright refusal of any offer of help that sits at the very heart of the Florida Marchman Act statute; and, unfortunately, at the very heart of addiction. The questions being asked following this post are the same questions thousands of families have when seeking help for someone who will not help themselves. So, again thank you.

Now, on to your answer. Currently, my law firm has been asked by the Drug Policy Advisory Board of the State of Florida, in conjunction with other state agencies and legislators to re-draft the Florida Marchman Act. Many hours and a history of thousands of cases under our belt have come up with a new Marchman Act statute that will not only assist families, but protect the addicted from unscrupulous treatment providers. A public hearing on this final draft will be held this Wednesday from 1-3pm at Nova Southeastern University - Horvitz Building. One of the proposed changes will affect the standing requirement by expanding the standing criteria of Florida Marchman Act.

However, until the day this re-draft is signed into law, we must look at how the current statute defines one who has standing to file. Based upon the fact that you stated that you are this persons aunt, I would say that you clearly can file as a relative in the case of an adult, and, that an aunt should be allowed to file in the case of a minor for two reasons: (1) you are a relative; and, (2) I would argue that the word guardian as listed in the statute is vague enough to include an aunt and should be applied to a relative. Specifically, because the statue does not say that one has to be a "legal guardian", but only a guardian. Often this can be any person who acts in a protective capacity, even without any "legal" designation as a guardian.

Here is the actual law, below. If you have further questions, call our office at 1-877-35-ABUSE. Good luck.

§ 397.6811. Involuntary assessment and stabilization

Involuntary assessment and stabilization may be initiated by the submission of a petition to the court.

(1) If the person upon whose behalf the petition is being filed is an adult, a petition for involuntary assessment and stabilization may be filed by the respondent's spouse or guardian, any relative, a private practitioner, the director of a licensed service provider or the director's designee, or any three adults who have personal knowledge of the respondent's substance abuse impairment.

(2) If the person upon whose behalf the petition is being filed is a minor, a petition for involuntary assessment and stabilization may be filed by a parent, guardian, legal custodian, or licensed service provider.

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