Facts About the BAKER ACT

Submitted by attorney Maria Gallo credit Osceola Clerk of Court

What is a Baker Act?

A Baker Act is a means of providing individuals with emergency services and temporary detention for mental health evaluation and treatment when required, either on a voluntary or an involuntary basis.

How are voluntary and involuntary Baker Act Admissions different?

A voluntary Baker Act is when a person 18 years of age or older, or a parent or guardian of a person age 17 or under, makes application for admission to a facility for observation, diagnosis or treatment.

An involuntary Baker Act is when a person is taken to a receiving facility for involuntary examination when there is reason to believe that he or she is mentally ill and because of his or her mental illness, the person has refused voluntary examination; the person is unable to determine for himself or herself whether examination is necessary and without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself and such refusal could pose a threat of harm to his or her well being; and there is a substantial likelihood that without care or treatment, the person will cause serious bodily harm to himself, herself or others in the near future as evidenced by recent behavior.

Are there other criteria to know if a Baker Act is appropriate?

Yes, there is additional criteria for a voluntary and involuntary Baker Act not included here. For example, a law enforcement officer may transport an individual to a facility for evaluation if there is reason to believe that the individual's behavior meets statutory guidelines for involuntary examination.

What is an ExParte Petition for Involuntary Examination?

If you are willing to swear in a Petition for Involuntary Examination that you have personally witnessed an individual causing harm to themselves or others, an "ExParte" for an Involuntary Examination can be completed at the Clerk's Office, Mental Health Division.

What is the procedure for filing the Petition and Affidavit Seeking ExParte Order Requiring Involuntary Examination?

A family member or interested person may fill out the petition and affidavit in the Clerk's Office. You will need to provide proper identification and have personally witnessed the individual's actions.

What happens after I file the Petition and Affidavit?

Your sworn affidavit will be reviewed by the court. If the court believes, based on the evidence provided in the petition and affidavit, the judge will enter an order for the sheriff to pick up and transport the person to the nearest receiving facility.

When will the order be served on the person?

The sheriff will make every attempt to take the person into custody and transport the person to a facility. If the person cannot be located by the sheriff, the sheriff will hold the order for seven (7) days and continue attempts to take the person into custody.

How long will the order hold the person in a facility?

A person may not be detained for more than 72 hours.

Ask The Attoney : What Can I do to Help Friend in ALF ?

Hello

I need help being pointed in the right direction to get assistance for an elderly woman currently residing in an assisted living facility in Orlando, Florida.

She is our neighbor, and over the past 13 years has become part of our family. We love her and are very concerned about her welfare. Two years ago she was afflicted with Guillian Barre Syndrome, but has since recovered and is back to her old former self, completely able to manage living alone again (with a little assistance, which we are more than willing to provide)

The problem is her family. They are mental abusing her and are keeping her in the assisted living facility against her will. Her son told an employee of the facility that he does not want her to come home because he is afraid of what she will do when she finds out they have cleaned out her house and disposed of a lot of her personal belongings and keepsakes. Bottom line is he is afraid she will disown him and write him out of the will. We are talking quite a large amount of money, as her house is completely paid for and worth about 500,000. Her son had power of attorney, which she would like to change but her refuses to give her her purse or ID's.

How can we get her assistance and transportation home (from Orlando, Florida to Lakeland, Florida, a distance of about 50 miles. (I cannot drive long distances or I would do it myself) I know there will be a confrontation at the facility when someone comes to pick her up.

Please help me to help her, it would be greatly appreciated.

Thank you for your time and assistance.

Sincerely,
Sylvia B

By Maria C. Gallo, Esquire

Why does she need transportation from Orlando to Lakeland Florida? There are agencies (Angel on Board, Hughes Transportation) and other transportation facilities that can transport a perfectly competent person from one place to another.

The neighbors have little to no standing as they are not family but if the lady in the ALF has not been declared incompetent, then she needs to revoke her POA and simply, make arrangements to move back home. She is presumed to be competent to make the necessary arrangements to get services in her home.

If the neighbor thinks that the little lady is being financially or economically exploited, then they can report it to the Department of Elder Affairs at 1-800-96-ABUSE.

How Can you tell if you have a Good Guardian and how can you help a Good Guardian do their job?

By Maria C. Gallo, Esquire

Reader Asks, How Can you tell if you have a good guardian and how can you help a good guardian do his/her job?

How long has the Guardian been in Place? He or she needs enough time to get the 'Wards' assets and liabilities in order and for that he needs time.

Needless to say, Guardians sometimes inherit a mess and they need time to sort it out. The Ward's family needs to cooperate with the guardian and provide him with items that are reasonably requested of him: invoices, detailed expenses, etc.

Try to take reasonable, rational steps to fix the problem. Sometimes the family's knee jerk reaction is to call the governor. Don't call the governor; call the guardian; call the vendors to negotiate better terms or to at least explain the situation and advise them to call the guardian for insight on when they can expect payment.

Good Guardians NEED YOUR COOPERATION AND ASSISTANCE, NOT YOU GENERATING HIGHER GUARDIAN FEES BY YOUR CONSTANT SUSPICIONS.

Sometimes past due invoices generate late fees or deliquencies however as a guardian myself, I understand that guardians are usually in place because of family problems and/or turmoil. Guardians oftentimes come into situations where mortgages have not been paid, invoices are late, accounts are frozen, credit is bad etc.

Guardians are quite capable to picking up the phone and negotiating more favorable terms, waivers of late fees, extensions of service with promise of payment once Social Security gets re-directed and assets get secured and/or located. YOU GET MORE WITH HONEY THAN WITH VINEGAR.

DCF Employees in Florida Raise Money for Charity

This month's Kudos is dedicated to DCF employees who gave their time and energy to make the Fund raesising campaign a great success. The $97,572.65 raised as of Nov. 1 by Central Office and Northwood IT Center alone (this does not include money raised from Florida state hospitals) is proud testimony of the generosity of DCF employees who know the meaning of giving on behalf of the less fortunate. Your fellow DCF employees ,their families, and the public applaude you for a job well done!

From SunCoast: Congratulations to SunCoast Region employees for raising a grand total of $38,329.81 ! That total averages out to $33.80 per employee. SunCoast has designated the United Way, Red Cross and other charities to receive donations, and below is a breakdown of money raised - hats off to our SunCoast Region colleagues for a job well done!

Dana Sigrest, FSH's FSECC Coordinator stated, "The Florida State Hospital's FSECC kick-off was a success. So many people do not realize the magnitude of need for charitable organizations, nor do they realize the impact that a small donation has on the lives of men, women and children who need assistance."

Abridged =>

E.A. urges all our readers to support the DCF workers in all their hard work to raise funds for the needy and those that are in need of asistance an donate in whatever amount you are able to contribute, even small amounts all add up. We need to see more of this type of activity on an ongoing basis......

Ask The Attorney

January 28, 2008

My 90 yr.old brother and his wife 87 are being held in a Hernando County Nursing Home facility. My brother cannot see his wife of 67 years, whom he has cared for for the last 30 some years. She is invalid, he is considered unstable and not able to manage his own affair, after loosing his home and his credit, due to illness and poor financial planning. He was taken by Adult Protection services, put in lock up for 72 hrs.

The psychiatrist at lock-up gave my brother a sanity test which he passed with flying colors.

I went to see them yesterday at the Nursing Home and they told my brother that he could not permitted in the building because a loud argument had erupted sometime last week where they claim that my brother was forced feeding his ailing wife.

They would not give me any information about my sister in law’s condition, because something about the “privacy act”.

I have tried to find a lawyer in Hernando County, but there are only two lawyers listed and they both work for the County Court.

My brother is more than a hero to everyone who has known him. A Puerto Rican born an American Citizen, and is being treated by the Court as scum. He gets a pension from the State of New Jersey and ITT.

I plan to talk to the court appointed lawyer tomorrow and also my brother’s court appointed guardian. I want to know why my sister in law was in such a distressed condition yesterday. She sat on an old wheel chair without foot rest with her feet, cold on the floor. She was responsive, and answered all my questions, but would not eat unless her husband feeds her, and these people don’t let him do that. He shaved her faced and put her shoes on, in the usual loving ways.

My plate is full, what can I do?

Thank you for your attention,

Patria M. Summers

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By Maria C. Gallo, Esquire

I do not go as far north as Hernando County. But there are a few things that make me ask:

If your brother passed "the sanity test" with flying colors and the Petition for Protective Services was denied, then he should not have a court-appointed guardian.

His lawyer needs to file a motion to dismiss. BUT since he does have a free lawyer and before the lawyer is discharged, your brother should get him to have the wife re-evaluated or if this is not likely to change the outcome with regards to her mental well-being, then to locate staff/doctors/witnesses that will testify that your brother (the husband) is no threat to his wife and that he needs to be allowed access to her or, even better, that should be allowed to remain together in the same facility (if that is what your brother wants) or return both of them to their home with appropriate services/medical assistance in the home.

More Useful Information on Baker Act for Elders

by Maria C Gallo, Esquire.

I think I have explained the Baker Act procedure before but if not, here's how it is suppose to work (or least how it works in our circuit).

Baker Acts are fairly common in law enforcement arenas. A person who is suicidal or a person who exhibits odd AND injurious behavior, either to themselves or others, are at risk for being Baker Acted.

This is for the safety of that individual and for the public at large. A person is taken, involuntarily, to a hospital, mental health facility or, in our circuit, the Crisis Stabilization Unti. That individual is then placed under observation, usually for 72 hours.

If it is determined that the individual is NOT a threat to himself or others, he is released (or should be - if he is not released, that is a civil rights violation. More on that later.)

If the person is determined to be a threat to himself or others, a Baker Act hearing is held. The alleged impaired person is appointed an attorney to challenge the on-going detention in a mental facility and to fight treatment if it determined that it is not appropriate or if treatment is not what the client wants. Baker Acts do not give authority to any other person to then be able to raid that alleged impaired person's property.

That would require a different kind of hearing. And certainly any Powers of Attorney written by the alleged impaired person are no good.

Any person taking property from the alleged impaired person while they are in observation is not permissible and prosecution of that would be up to the State Attorney in that circuit.It is common, but unethical and/or illegal, to Baker Act someone without proper cause merely in order to get guardianship or improper access to the alleged impaired person's property.

This is exploitation of the elderly or exploitation of a vulnerable adult and both are crimes. Both can be reported to the Department of Children and Families Adult Protection Division (the abuse hotline) which in Florida is 1-800-96-ABUSE.

Are More Laws The Answer?

By Maria C. Gallo, Esquire

To some degree, I agree with the commentary that "more laws are not the answer." There are some remedies in place already but they are not being used nearly enough.

Some circuits have a staff accountant on board to audit/monitor the annual accountings.

Discrepancies or unexplainable charges should trigger a hearing in front of the judge.

The accountings should balance and the ending balance for one year should be the starting balance for the subsequent year. Discrepancies like that should also trigger court hearings and an inquiry of the guardian.

I oftentimes think that even the judges can not or do not read the accountings. Large purchases should be explained and/or justified with documents from an independent expert as to how or why this purchase benefits the ward.

Some judges are requiring bonds that historically had been waived. While it may create some hard feelings both among good guardians and reputable lawyers, bonds protect the ward from misuse, misappropriation and loss.

One law change that would be helpful. However, it is a change in the strict confidentiality of elder abuse/adult protective services and guardianship cases. Sometimes, family members who would help the ward and not take advantage of their loved one are denied even basic information that would allow them to intervene because they are not able to access information such as the status and sometimes even the location of their loved one.

Amy Grabill.- Writes -Help-

Amy writes ;

My mother IS a "Ward of the State" and she is wondering why the POA she gave my eldest brother is not being upheld, is there anything we can tell her, how do we get her wishes respected and the POA she drew up for my brother put back into action?

Everyone is passing the buck on her case, no one knows what she can do and she is not able to be with the son and his family she intended on being with when she got old and needed assistance with her financial affairs and such! It is a crime that mamma is being handled this way!

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by Maria C. Gallo , Esquire

Dear Amy ;

There is not sufficient information to answer your question because I do not know when the POA was drafted or how your mother became a ward of the state.

But let me say this:

A POA is only good if the person was competent at the time of its drafting. No POA can be drafted after a person has been declared incompetent in a court of law.

However, a POA is also rendered useless if a person is subsequently declared incompetent. I do not know how your mother became a ward of the state. Did the Department of Elder Affairs institute a competency (Baker Act) action against her OR an Adult Protective Services (API) action?

A Baker Act would only render Amy's mother in need of 72-hour observation. If after the observation it was your mother determined by a panel of two or three experts that she (your mother) was incompetent, then a separate guardianship petition would have to be filed.

Typically the Department of Elder Affairs locates lawyers who would initiate those petitions. If a guardianship petition was filed, relatives are suppose to be noticed so that relatives can ask to be considered as the person's guardian.

Amy's mother would have been appointed an attorney (called an elisor) to represent her interests. If the relatives were not notified, then the appointed guardian is subject to removal.

(This is assuming that a guardianship petition was filed.) If there is a guardian, then the relatives should file to replace the guardian with a relative using the POA as evidence that Amy's mother intended someone other than a state appointed person.

However, if this is an API case, then the proceeding is as follows:

A social worker usually from the Department of Elder Affairs although it could be a hospital social worker or other person who works with the elderly, files a Petition for Protective Services, alleging that the person is in need of state protection because the person is either being exploiting or abused or in need of state services.

The social worker is represented by an attorney for the State. The elderly person, allegedly needing state assistance, is appointed a lawyer to defend her. That lawyer should attempt to locate relatives and/or other individuals or agencies to provide the elderly person with services to meet her needs and to eliminate the exploitation or abuse.

If the elderly person can safely return to her previous situation with whatever services are necessary to meet her needs, then adult protective services can be terminated.

If the elderly person is incompetent or in need of continuing services, then a search for a suitable guardian must begin. A guardianship petition would eventually be required to protect that person and to eliminate the need for state intervention. Yes, it may even mean that the person can not return to their home.

Amy in your mother's case, You should contact your mother's state social worker and find out how she became a ward of the state. If her mother's attorney will talk to her, then she should call him/her too. If her mother's lawyer is not willing to consider Amy or some other relative as guardian, then she may need to hire a lawyer to file a motion to intervene and have her concerns heard by the court.

It is best to have a guardian who lives locally, however, the law does allow for an out-of-state guardian if that person is a close relative of the individual.

Good luck Amy. Move quickly though to prevent your mother's assets from being diminished to pay for the cost of these legal proceedings............

Under What Circumstances Might a Person be Held under the Baker Act ? For How Long ?

Under What Circumstances might a person be held under the Baker Act ? And For How long ? Are documents such as POA obtained by family members under the Baker Act binding ?

by Maria C. Gallo, Esquire

A Baker Act requires a court hearing in front of a judge. At that point in time, the targeted individual may be taken to a psych ward or hospital for 72 hours of observation. If the psych determines that the individual is not a threat to himself or others, then they are compelled to release the individual. A power of attorney may not be sought while the person is temporarily under observation. If any legal matters are pending while the person is under observation, the person requesting the Baker Act must seek court approval. However the person may also simultaneously seek guardianship of the individual. This also requires a petition and if legally sufficient, it would trigger an examining committee of three experts, one of whom must be a psych or other form of licensed doctor to determine whether the individual is incompetent or not.

If the three examiniers however determine that the individual is NOT incompetent, then that is the end of it. The petition for guardianship is dismissed and all the actions taken while the individual was hospitalized or under observation, if any, must be reversed.

Baker Acts were never intended to be used to steal from our elders. And one must be VERY careful with Baker Acts because seeming dementia may be merely a temporary reaction to food, or overmedication.

The individual who is the subject of a Baker Act is entitled to an attorney and this attorney should aggressively question both the individual and the hospital staff to make sure that the seeming dementia or bizarre behavior is not the result of overmedication, medical illness, or food/allergic reaction. And yes, sometimes, it is even the result of evil-intended family that have deprived the individual of food or prescription medication or well-meaning family that have over-medicated or incorrectly medicated their loved one.

The land mines in this kind of legal proceeding are immense. One's constitutional rights are at stake not to mention the individual's life and health.

Are Guardians Accountable?

by M Gallo,Esquire

Like any profession, there are good ones and bad ones. We currently have a judge that is requiring bonds, even of professional guardians, which caused some hard feelings but maybe it is not such a bad idea.

The job of guardian is not to lock our wards up in ALFs and nursing homes and then forget them. Apparently this is happening in all too many cases. Sure, it is easier for the guardian but the job of the guardian is not to be warden.

There is a nursing home ombudsman to whom you can complain about nursing home issues. And you can also request a court monitor or an accounting of the guardianship file (or both) if you suspect problems.

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ElderAbuseHelp.Org invites you , the readers to come up with interesting questions regarding guardian,elder care, nursing home and probate issues.

E.A. will forward the questions to an experienced guardian,attorney that deals with these issues on a daily basis.

The Attorney will pick the most timely questions and comment on these which will be periodically published.

Please write us with your comments or questions to : ElderAbuseHelp.Org

Are There Laws Regarding Turn Key Guardians and How Guardians are Chosen?

by Maria Gallo, Esquire

F.S. 744.3031 For Emergency Guardianship Petition

The statute allowing for an Emergency Temporary Guardianship is § 744.3031(1).

According to the statute, an Emergency Temporary Guardianship is for those situations where it is necessary to provide immediate care after a petition to determine incapacity has been filed but before the appointment of a plenary guardian.

Once a plenary guardian has been appointed, he or she may only be replaced or removed as directed in Florida statute and Florida probate rules (which also apply to guardianship proceedings).

The plenary guardian must resign and properly petition for discharge. Such resignation and the petition for discharge must be noticed to interested parties. The notice should include a provision advising of a 30 day period to object to the resignation as provided in Florida Probate Rule 5.650(d).

As part of this discharge, the plenary guardian would also be required to file his or her final accounting.

A discharge petition must contain the guardian's wish to resign, the amount of compensation to be paid to the guardian and others employed by the guardian, and the name of any successor guardian (if any) or that a successor guardian needs to be appointed. (See Florida Probate Rule 5.650 (b).)

Is it better to try to keep the "Ward" in their own home?

by Maria Gallo,Esq.

As a professional guardian myself and a lawyer, I know that it is always best to keep someone in their own home.

It may not be the cheapest but it is the best for the ward. A "good" nursing home will cost about $5500 a month and when I say "good", you know what I mean.

Even the best nursing homes leave MUCH to be desired.

A private aide in the ward's own home is always the most comfortable for the ward so long as the private aide can be trusted.

This is always a trick too but with supervision, the ward's assets in the home could be protected.Also the ward's family and heir should be allowed information about their elder family member and their assets.

The ward is not to be isolated from family and friends, just protected from harm and exploitation.