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What is the Baker Act and How does it Affect Family Law Matters?


The Baker Act refers to a Florida law that provides emergency mental health services and temporary detention for someone who is struggling with and / or impaired due to mental illness, and he or she is unable to determine what is needed for treatment. The name refers to the former Florida State Representative from Miami, Maxine Baker, who sponsored the act in 1972.

The Baker Act, or The Florida Mental Health Act, is governed by Florida Statutes Chapter 394 Sections 394.451 – 394.47892. This gives the Department of Children and Families the right to research, evaluate, and make recommendations to the Governor, and sets up state legislative programs that are designed to reduce various aspects of emotional, mental, and behavioral disorders. Treatment for these disorders can include social, health, educational, and rehabilitative services for someone who requires intense short-term treatment or long-term continued treatment, which are designed to encourage them to take over responsibility for their treatment and recovery.

Criteria for Involuntary Examinations

If a family member is believed to be mentally ill, they may be involuntarily committed for evaluation. Mental illness is defined as emotional or mental processes that take conscious control of someone’s actions and substantially impairs their ability to meet the demands of ordinary life. It does not include developmental or retardation disabilities or conditions that manifest due to substance abuse impairment or antisocial behavior. The individual must have refused voluntary examination, or cannot determine an exam is necessary, and without further treatment, the person will likely suffer from neglect. Or, there is also a substantial chance that the person will cause serious bodily harm to themselves or to others without further treatment and care.

How Involuntary Examinations are Initiated

Involuntary examinations are initiated in one of three ways. The first method is through ex parte order issued by a circuit court. The order is issued based on sworn testimony that directs law enforcement to take the individual to the closest receiving facility. Ex parte orders can be executed seven days a week, day or night, and they authorize the use of reasonable physical force as required to gain custody. Another way is when a law enforcement officer witnesses a person who appears to meet the standard criteria for being taken into custody. The third method is when a physician, psychiatric nurse, clinical psychologist, or clinical social worker certifies they examined someone within the preceding 48 hours who meets the criteria for involuntary examination. A law enforcement officer can then take the person into custody and deliver them to the nearest facility.

Baker Act and Divorce

If your divorce filing is based on mental incapacity, you have to prove your spouse has been incapacitated for the past three years. A Baker Act hold is only 72 hours in most cases, and therefore not sufficient to prove mental incapacity. Baker Act results can, however, impact other pending legal issues like spousal support and child support or custody.

If you have questions about the Baker Act, or have a family law matter that may be affected by someone held under the Baker Act, you need to speak with a knowledgeable Boca Raton family law attorney as soon as possible. Contact the Law Offices of Schwartz | White on our website or call our office at 561-391-9943 to schedule a consultation.



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