In the event a crises precipitates immediate intervention, there may be some aggressive but impermanent options available to resolve the crises and still avoid a full blown guardianship.
Protective Services Intervention – F.S. § 415.1051
This is a legal measure, administered through the Department of Children and Families (DCF) Adult Protective Services (APS) department. Reasonable cause to believe that a disable adult or elderly person is being abused, neglected or exploited must be confirmed directly by the department. This process is begun by calling the 1-800-96-ABUSE number and giving a detailed report of the abuse, neglect or exploitation. The department must determine that the individual is in need of protective services AND lacks the capacity to consent to protective services. They must also determine the abuse or neglect presents a risk of death or serious physical injury to the individual.
Once the above criteria are met, a petition for Protective Services is filed with the Circuit Court’s Mental health division by the APS attorney. A hearing is set within 14 days of APS filing the petition. If the court agrees with the department’s assesment, the hearing officer issues an order of Protective Services, which remains is effect for sixty days. This order designate a “responsible party” to act on behalf of the individual, under the supervision of the Department of APS.
After sixty days, DCF must notify the court of one of the following:
- Protective Services will be continued with the consent of the person
- Protective Services will be discontinued
- A petition for guardianship should be filed
Emergency Temporary Guardianship (ETG) – F.S. § 744.3031
Should there be an imminent danger to the individual’s health, welfare or property, then the court may appoint an Emergency Temporary Guardian. This guardianship only lasts sixty day, or until a permanent guardian is appointed, whichever comes first. A petition for determination of incapacity must be filed at the same time the petition for ETG is requested.
The party(s) who pettition for the appointment of an ETG must prove to the court one of the following:
- There is imminent danger that they physical or mental health or safety of the person will be seriously impaired
- The person’s property is in danger of being wasted, misappropriated or lost unless immediate action is taken
The hearing is held as soon as possible and the person’s level of capacity must be at least diminished in order for the appointment of an ETG to occur.
The court will immediately appoint an attorney to represent the AIP. (In Broward County, this attorney must have met with the AIP at least one before the ETG hearing can even be held).
If the Guardianship is granted is granted, it will be limited in scope based on the findings of the initial hearing. Sometimes and ETG can uncover the necessary alternatives to guardianship to avoid the appointment of a permanent guardian.
Mandated Hospitalization – F.S. § 394.467 (The Baker Act)
This legal mechanism is used to order an individual to be placed in a psychiatric facility for evaluation. The individual must:
- Be mentally ill and
- Need Treatment but refuses
OR - Is unable to recognize that the placement is necessary
During the court hearing, documentation that all available and less restrictive treatment alternatives are inappropriate must be presented to the Hearing Officer
AND the individual must meet one of the following criteria:
- Is incapable of surviving alone or with the help of other (if allowed) and this neglect or refusal poses a present threat to his or her well being
OR
- Presents a danger to himself or others
Mandated Hospitalization – F.S. § 394.675 (The Marchman Act)
This allows an individual to be placed in a psychiatric facility by order of the court due to substance abuse impairment.
