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.

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.

Letters to Editor : Alledged Victims and The Baker Act !

Hello, *Martha Lenderman,

I understand and have read about your involvement with the Baker Act.What I'm curious about is how far you'll go to see that the Baker Act isn't misused.

Please take notice that the events you are about to go over are currently happening and my Sister and I are helpless todo anything about it.

There is a side to the Baker Act that allows a person to use the Baker Act to have an elderly person placed in the Florida Hospital in the Psych ward for observation while they steal their home and finances.

Who takes or is responsible for the Baker Act, when it is the tool used for the prior mentioned activities.

If I were to place a person in a hospital under the BakerAct, and did this with the intension of stealing my grandmothers assets.Who would want to know about this that could do anything about it?

So far, no one cares one way or the other, from Medicare SIU, Any political affiliation passes the buck, The DCF wants to see bruises, the police are helpless, and The Florida Hospital can't say anything due tothe Mental Illness aspect.

It seems like The Baker Act has totally protected anyone affiliated with it except for the victim My Grandmother Revelle Rose Markert. So far, I haven't seen one procedure or protocol from the Baker Act actually respected , from Kidnapping an Elderly woman, to a 196 hour stay at the Florida Hospital, to Using the Temporary Guardianship to move every bank account Revelle has prior to petitioning for Plenary Guardianship.

Not to mention the people that observed the persons improperly medicate my grandmother while under the Baker Act.

I do apologize for looking for answers from you. From my Surfing the internet, you are the only one that seems to know what the Baker Act is and how it is supposed to be used.

My Grandmother, Revelle Markert,
a current resident of Sebring Florida

4225 Seawood Ave
Sebring, Florida 33875

**
I've copied staff from the district office of the Florida Department of Children and Families (DCF) on this reply so they can follow-up on your grandmother's situation. DCF is the state's mental health authority and it designates facilities to participate in the Baker Act.

The Florida Agency for Health Care Administration actually licenses the hospital.

It's best that your inquiry be handled by representatives of state agencies.

We forwarded your email to the DCF and the local sheriff's department for review

You may also contact The Bar by mail at 651 East Jefferson Street, Tallahassee, Florida 32399-2300, telephone (850)561-5839.

Please continue to seek private legal counsel if you need any legal assistance to ensure that your best interests are represented. An attorney can provide the legal advice which our office is precluded by law from giving to private individuals. The Florida Bar also offers a Lawyer Referral Service at the above address. The toll-free telephone number is (800)342-8060.

Contact the Humana Medicare Offices of Special Investigation Unit for Abuse and Fraud.

Because of the volume of e-mails I receive on a daily basis, combined with the workload that comes with my position, I may not be able to respond to your concerns immediately.

Section 16.01, Florida Statutes, sets forth the powers and duties of this office. We are precluded by law from providing legal advice or opinions to private individuals.

Florida Attorney General Bill McCollum has received your Email expressing your concerns about the possible exploitation of your elderly grandmother as described in your correspondence. Attorney General McCollum asked that we respond. We are saddened to hear of your grandmother's troubles.

Related Articles:

Help! My Grandmother Is Held Against her Wishes In Isolation While She is Being Fleeced!

Key Schiavo Player Takes Her Act On The Road-Baker Act

*Martha now does consulting, primarily related to the Baker Act and Marchman Act. She:

• Assisted the Legislature in preparing the 1996 Baker Act reform,
• Wrote the Florida Administrative Rules governing the Baker Act,
• Developed the model Baker Act forms,
• Developed the facility survey guidelines for AHCA and DCF, and
• Wrote the state’s Baker Act and Marchman Act Handbooks.

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............

Help! My Grandmother Is Held Against her Wishes In Isolation While She is Being Fleeced!

David MacCaslin and Deborah MacCaslin Write : Revision 12-6-07 Sebring,Florida USA

Are you aware of the Baker act and how it was put in place to help people who might be mentally ill from causing harm to them selves and or others?

There is another side to the Baker Act. A person can use the Baker Act to have an elderly person placed in the Psych ward of the Florida Hospital for observation, while they steal their home and finances.

I cannot believe there is a law in place that could allow a relative (Daughter) to have an elderly woman placed in a hospital under the Baker Act, so she could get Power of Attorney over her own mother, and then take everything she has.
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(Updates) David and Deborah write ; Wow....... they responded.
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Florida Attorney General Bill McCollum has received your Email expressing your concerns about the possible exploitation of your elderly grandmother as described in your correspondence. Attorney General McCollum asked that we respond. We are saddened to hear of your grandmother's troubles.
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This is called a "Sympathy Letter" all victims or their families who complaint about abuse to a loved one get one : or as Joan Abney from Glendale, Arizona writes "Political Rhetoric."
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Thank you for your correspondence regarding the concerns and allegations of elder abuse against Dr. A. .J. Fernandez and Clara G. Fernandez. We understand and sympathize with you about the treatment of your parents. Please accept our condolences at the death of your father.
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Then there is is the " Wish there Was Something We Could Do Letter "
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Dept of Elder Affairs : The events that occurred are tragic. Unfortunately, they do no fall under the Department of Elder Affairs. While the Fernandez's do classify as elders, the services and employees involved all fall under the Department of Children and Families. We wish there was something we can do.
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This is called "Passing the Buck Letter " You will probably get some of these also.
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We are forwarding your Email to the Florida Department of Children and Families and the appropriate Sheriff's Department for review and whatever actions those authorities may deem appropriate.
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And then lastly there is the " Exculpatory Letter" It goes something like this:
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I am sorry to learn of the difficulties experienced by your deceased father, Dr. A.J. Fernandez and your mother, Clara G. Fernandez. I assure you that any allegation reported to the Florida Abuse Hotline is thoroughly investigated and appropriate action is taken. However, if an additional report is received regarding the same allegations, the duplicate report is not re-investigated.

If you have any new concerns regarding abuse, neglect or exploitation of your mother, please report them immediately to the Florida Abuse Hotline at 1-800-962-2873. A determination will be made if an investigation will be initiated. I assure you that the safety and well-being of your mother is one of our highest priorities.
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After that there is a very good chance that you will never hear from them again!
unless the perpetrators file a retaliatory complaint against you and your sister for having reported the abuse. Then you will have to be investigated!
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Further Updates: 12-5-07 9 AM
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David and Deborah Write: There is one thing else I’m kind of upset about. I sent out E-mails to every TV station, Every News Paper And radio station in the Tampa, Miami and Sebring area and I never heard a word back from any of them.

You can also include The Senator, Governor, of Florida And the Mayor and Sheriff. Also heard nothing From them.

You were the only one I heard anything from.
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E.A. is probably about the only press coverage you are going to get, until you have a body that is ! then a few media outlets might pick up on the story.
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Further updates: 12-5-2007 6 PM
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David and Deborah write : We just found out that my grandmother will be released From the hospital today. To see the brand new car parked in her drive way. Geez Kathy and Dennis really do have some serious (#%^%^) gall

It’s 4am here now and my sister just txt me a message.“Well they did it, a brand new Blazer in the drive way Arrrrgh. That pretty much means that they cashed in all of my Grand mothers CD’s.
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Yes David, that means they probably did, along with your Grandmother's jewelry,collectibles, anything of value.

The general Rule with Elder Abuse is , once you notice they are starting to "Lose it" whether Alzheimer's, Dementia or just plain old and helpless, they are open game, and the first one to get to them gets the prize, the new car is just a teaser, the "Big Prize" is the House and or Estate or Trust if she has one.
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David & Deborah write : My grandmother is home and the "abusers" won't allow anyone to contact her.
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David this is standard procedure, "Isolation" they can't afford to have any family speak with your grandmother now , it just might just screw things up. Isolation is a form of Elder abuse is it a form of psychological torture .
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David and Deborah write : It turns out that I wasn’t the only one making a exploitation claim about my grandmother against Kathleen and Dennis Lukasik. There was a second claim made a few weeks before mine.
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Gee David this is bad news: Robert Butterworth,Robert A. Butterworth Secretary
1317 Winewood Boulevard, Tallahassee, Florida in a letter addressed to me dated August 22,2007 says:
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"I assure you that any allegation reported to the Florida Abuse Hotline is thoroughly investigated and appropriate action is taken. However, if an additional report is received regarding the same allegations, the duplicate report is not re-investigated."
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In other words David there was nothing done about the claim filed prior to yours, why should they do anything now? If there was nothing done about the prior claims then then the likelyhood of them taking action on subsequent complaints go down significantly.
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Thank You David and Deborah For Keeping us posted and most of all thanks for allowing us to use your real names and contact information, because this stuff is so un real that people often think that we exagerate and make these things up. Most people are "Un believers" that is they don't believe this is something that could happen in "their" family until it does and then it's usually too late.
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David MacCaslin
david@dme-remodeling.com
1080 San MiguelConcord, CA 94518
925-300-5597

Deborah MacCaslin
Sebring, Florida 33875
925-914-9312 (cell)

Fact : I had myself removed from Revelle’s Will over ten years ago. This issue is not about money.

Fact : Revelle is of sound mind and fragile body.

Fact : The Baker Act. Is the tool used to steal a life time of property and finances from Revelle Rose Markert.

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.