The Marchman Act, Addiction, and Estate Planning Issues That Come From Them
You may be aware that courts can appoint guardians for people who are infirm or unable to take care of their daily needs due to physical or mental illness. But guardianship is not the only time when a civil court (that is, a court that isn’t dealing with a criminal infraction) can take rights away from those who are ill. One lesser known area is the Marchman Act.
What is the Marchman Act?
The Marchman Act allows families to have family members committed involuntarily for substance or alcohol abuse, where the abuse threatens their lives, or at least, where the person is unable to make rational decisions about their usage of the addictive substances. Although the act takes away someone’s freedoms—they are being committed for treatment without their consent—the act is not criminal but civil in nature, and thus lies closer to guardianship law than anything else.
Anybody who is in a position to make, in good faith, a determination about the addicted person, can file a petition under the Marchman Act. After taking testimony, a court can then order someone to be evaluated for no longer than 5 days. The results of the evaluation will be reviewed by the court, and if necessary, the court can then order a treatment plan that doesn’t exceed 60 days. However, if during those 5 days no cause is found to retain the individual, they will be released.
Families using a lawyer may be able to bypass the initial 5 day stabilization and evaluation phase, as an attorney will file a sworn petition with the Court alleging why the Marchman Act should be invoked.
Fighting the Marchman Act
In some cases, loved ones may consent to the treatment and perhaps even welcome it. But in other cases, a legal battle may ensue, as again, much like guardianship, you are taking away someone’s personal freedoms and liberties, even if only temporarily and for their own good.
Someone who is subject to being put into treatment involuntarily can show up to court to defend themselves, or explain why they are not in need of treatment. They have a right to have an attorney appointed for them, a right we commonly associate with criminal law, even though this is not a criminal action.
Estate Planning Problems
Addiction of any kind, even if Marchman is not used, should be carefully monitored by family members, as it may have estate planning ramifications.
Someone who is found to be addicted under the Marchman act can have their personal assets temporarily frozen, and have financial transactions undone that may have been completed while the person was addicted.
Estate planning decisions that were made during a time of addiction can be reversed. This includes any changes to wills or entering into contracts which all may be subject to attack based on a lack of mental capacity. Transfers to third parties, such as illogical sales or gifts to others or unnecessary squandering of personal or family assets, could be undone.
Make sure estate planning and asset decisions are done properly and cannot be attacked. Contact Tampa asset protection and estate attorney David Toback to discuss your estate plans.