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.