A Contagious Smile Podcast
Stop surviving and start thriving. A Contagious Smile is a globally ranked podcast providing a safe haven for abuse survivors and special needs families navigating the journey of trauma recovery. Whether you are healing from domestic violence, narcissistic abuse, childhood trauma, or the daily challenges of disability advocacy, our mission is to turn your pain into power.
Each episode features raw, authentic conversations with survivors, mental health experts, and advocates who share actionable resources for PTSD healing, resilience building, and emotional wellness. We go beyond the struggle to highlight the triumphs of the special needs community, offering support for caregivers and individuals with disabilities who are rewriting their own narratives.
Hosted by Victoria Cuore, an award-winning trauma advocate and survivor, this podcast delivers the "blueprints" for recovery—not just Band-Aids. Join our community to find hope, humor, and the unstoppable spirit needed to rekindle your inner light.
A Contagious Smile Podcast
When Civil Liberties Collide with Survival with special guest Mark Astor
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A parent’s most frightening moment is realising love alone will not stop a spiral. When substance use disorder and mental illness collide, families get pushed into a world of crisis calls, involuntary holds, court filings, and treatment programmes that do not always communicate or cooperate. We sit down with Florida attorney Mark Astor, who leads a mental health and addiction law practice built around one goal: saving families when a loved one cannot or will not choose help.
We get specific about the tools people search for late at night: the Marchman Act in Florida for involuntary substance abuse assessment and treatment, the Baker Act for acute mental health crises, and the limits of guardianship and conservatorship when you still cannot find a bed or physically get someone to care. Mark explains why “30 days and done” is a dangerous myth, how relapse prevention depends on daily recovery work, and why enforceability is the hinge that determines whether a court order changes anything at all. We also unpack the hard civil liberties questions, the county-by-county reality of different judges, and what happens when mental health systems become a black box with limited oversight.
If you’re a parent, partner, or advocate trying to navigate crisis intervention, outpatient commitment, HIPAA barriers, and cross-state guardianship problems, this conversation will give you clearer expectations and a better vocabulary for asking the right questions. Subscribe for part two, share this with someone who needs it, and leave a review with the biggest system gap you want fixed.
Mark, an attorney since 1994, was born and raised in the UK and began his legal career as a Palm Beach County Assistant State Attorney before entering private practice. He served as Chief of two County Court Divisions and later worked in a felony trial division, handling thousands of cases from misdemeanors to capital murder.
Admitted to the Florida Bar in 1994, Mark later gained admission to the U.S. District Court for the Southern District of Florida (1995), the District of Columbia Bar (2005), and the Massachusetts Bar (2022), where he opened a Boston office. Mark holds a BA from the University of Michigan (1990), a JD from Nova Southeastern University (1994), and an LLM from American University (2005).
In 2016, Mark founded Drug and Alcohol Attorneys, a service for individuals and families affected by substance abuse and mental health disorders. In 2017, he co-founded Astor Simovitch Law with his wife, Audra Simovitch, a firm dedicated to saving families whose loved ones are suffering from substance use, mental health disorders, and failed attempts at recovery. In 2020, he founded Baker Act Attorneys, advocating for individuals wrongfully detained in the State of Florida’s mental health system. Mark has successfully litigated against hospitals and facilities violating rights under the statute and is known for his relentless commitment to securing releases, day or
night.
Welcome And Guest Introduction
SPEAKER_02Hello, everybody, and welcome to This Is What It Takes. I'm your co-host, Michael Makniak, and I'm here as usual with my dear friend and partner, Victoria Cure. We're very pleased this week to offer you a really interesting guest that I had the pleasure of meeting a couple weeks ago, who is a fellow attorney. Don't hold it against him either. And Mark, Mark Astor is here. He's with Astrosimovich Law, which is the mental health addiction law firm. He's based out of Florida, but he does a lot of work for many, many folks all over the country. And he fields a lot of phone calls from people who are in very unique situations that I find a lot of my clients in. We're going to talk with Mark about his practice and the interesting work that he's done in his career. Mark, welcome.
SPEAKER_01Michael, it's good to be here. Victoria, nice to see you too. I'm excited to be here, especially with a fellow attorney.
SPEAKER_00Oh, thank you for being here. I feel so good.
SPEAKER_02So you're the one that's excited to be with the lawyer, huh? Yeah. So, Mark, other than being here and seeing Victoria, because I know it's not me, what's got you fired up? What are you doing these days
A Law Firm Built To Save Families
SPEAKER_02that's really got you your juices flowing? And in addition to your really good podcast, talk about that for a second too, if you would.
SPEAKER_01Yeah, so I am, along with my wife, the co-founder of a law firm. We're based here in South Florida. We have a couple of offices, one in Orlando, one in Jacksville, and actually we have one in Boston too. And the mission of the firm is to save families whose loved ones are suffering from substance use, mental health disorders, and failed attempts at recovery. So we speak to families from all over the country. Certainly, you know, that New York, New Jersey, Connecticut area, the Midwest. We get calls from, we've had calls from Hawaii and California, Oregon. And it's usually moms and dads who call us. And it's because they have somebody in the family, usually an adult child with a long history of drug use, mental illness, treatment that doesn't work if they'll even go. They're probably med non-compliant. They may well have been a guest of the state through either the criminal justice system or the mental health system, and maybe even an overdose. And the families call us and say, We're done. We can't take the chaos. We're sick and tired of being sick and tired. Can you help us? Usually the answer is yes. But Michael, as you know, recovery is a journey, it's not a destination. I mean, families say, Can you wave a magic wand? I can, but you won't see the results, probably for somewhere between six to twelve months.
SPEAKER_02Yeah. And I see that a lot too. If you're going to commit to us, commit to us, because this is not something that you're going to see results in a few years.
SPEAKER_01It doesn't work that way. It just simply doesn't work that way.
SPEAKER_02Just trying to understand the issues and breaking into the system accordingly takes three to four months, you know?
SPEAKER_01Yeah.
SPEAKER_02You know, it's like it's like when you stop working out, you know, it's like it took you years to get this fat. How are you gonna you it's not just gonna go away that quickly?
SPEAKER_01That's a gr that's a gr a great analogy. You know, I always what the other one I use is, you know, when I talk to families and say, well, if God forbid you had cancer, right? I mean, you you wouldn't do 30 days of chemo or 30 days of any treatment and say, Oh, I'm good to go. I can go back, I can smoke, I can drink, I can eat with, you know, I can eat McDonald's every day. You wouldn't do that, right? You'd you'd you'd look for a long-term treatment prognosis that not only helps you experience remission, but keeps you in remission. And that's the the trick with any kind of behavioral health issue. We want to experience recovery, but but be able to maintain it for the rest of our life because we want to try and get it right the first time, if we can.
unknownYeah.
SPEAKER_00Isn't it true that on the average it doesn't always go right the first time? It's it's you're always in a phase of recovery, like just like in cancer, you're always in a phase of remission. And so there's things that you need to do on a daily basis to ensure that you stay in your recovery the way that you need to.
SPEAKER_01Yeah, you know, Victoria, that is such a great point. I mean, one of the things that we've been incredibly blessed to experience over the last 10 years, is we made a lot of really close friends who are in, you know, in the recovery space. And those that are that are in recovery for five years, 10 years, 15 years, or even longer, there's one core theme that they they all do, and that is to work on their recovery every single day. One of my closest guy friends, probably my closest guy friend now, he's been in recovery for 20 plus years. There does there's not a week that goes by that I don't call him at least once, and he's like, Gotta call you back. I'm in a meeting. So you it's a hundred percent right. And and I think for some families, like, oh, we didn't realize this. We thought we could just do, we'll put him in treatment for 30 days and it'll be over. No, no, it doesn't
Recovery Is A Daily Practice
SPEAKER_01work that way.
SPEAKER_02Well, and one of the other things that you just said that's perfect is I oh, we thought we would just put him in treatment. Yeah, how are you gonna get them in treatment? You know, I mean And keep them there. That's my point, right? I mean, so I want to break some of that down with you today because the magic wand is something the magic wand question is something that that I get all the time. Up my way we call it a conservator, down your way you call it a guardian, where folks are you know basically giving the authority to make decisions for for and in the best interests of another, i.e., mother and father making decisions for their adult child, you know, when it comes to addictions or mental health treatment, etc. So somehow it got put into people's brains, and maybe this used to be the way of the world back 30, 40, 50 years ago, that hey, I'm now the conservator, and hey, I'm now the guardian. I mandate that you go into this facility, i.e., you know, rehab or even mental health facility. Number one, as I say, how are you gonna get him there if he doesn't want to go? Number two, have you spoken to the facility about this yet? So that's the first piece where you just mentioned this magic wand. There is no magic wand, folks, and having the designation from a court as a court-appointed conservatorslash guardian does not thereafter give you the magic wand or the teachings that Harry Potter and his friends went to whatever magic school. I was not a Harry Potter guy, sorry.
The Marchman Act Explained Simply
SPEAKER_02So one of the things that you well, let's talk about this one first because I think we could relate to this one on some level, the Marchman Act in Florida. All right, so tell people about what the Marchman Act is in Florida, because we've it's not a national, it's not a federal act, it's a national, I mean a state act. Talk about that for a minute synopsis of the Marchman.
SPEAKER_01Yeah, so the Marchman Act, as you as you correctly pointed out, Michael, is is a statute that is unique to Florida. Other than Kentucky, which has Casey's law and Massachusetts has section 35, there's really nothing quite like it. And it is a statute that allows a family to petition the court to put somebody into treatment for periods of up to 90 days, where there is a primary substance use disorder. So we've got to have some drug use. And that has to be primary. But it also contemplates co-occurring mental illness as well. And the statute has evolved in that direction because these days, I mean, if there's substance use, there's almost certainly mental illness. And so that has to be taken into account for the most part. I very rarely see just a unless it's somebody who has an alcohol disorder, but even then there's some type of mental health component. But it's really designed for where there's a primary substance use disorder. What's what I think is is neat about it or cool about it, you know, us lawyers we geek out over this stuff, is there's an assessment period. And that assessment period can be initiated on an ex-party emergency basis. Meaning we file our petition, the court looks at it and says, Looks good to me, and they send law enforcement out to go and get the person and basically collect them off the streets and take them to a place of safety where we can keep them secure and get them assessed and get them stabilized and get them detoxed. So a lot of the time we can initiate this without telling them, oh, this is coming down the pipe. Because if you do that, a lot of the time they're just going to flee, they're going to run, and now we're playing catch up. And so that's what's neat about it. And it's it's been a very useful piece of legislation for us. Uh these days, I'm, I mean, while I'm a fan of it, I think it gives us limited control. And these days I think you need a lot of control.
SPEAKER_02Well, let me talk about that from two perspectives, because that's on the on the front end of getting somebody into treatment. Right? So we've we as a family, we the three of us get together and we decide, hey, we really need to do something for Jane Doe. And we decide that we're going to institute an action under the Marchman Act to try to get her picked
The Bed Shortage Problem
SPEAKER_02up, evaluated, treated, hopefully in in an inpatient setting, because you know, that tends to be more at least in the beginning, for sure. So we have a statute that's been on our books forever in Connecticut. And I don't, you know, I without having done the research, I don't know about laws in every other state, obviously. But some of the interesting pieces of the law that we have in Connecticut that are basically the same thing. Well, number one, it doesn't get used. Yeah, why is that? Well, I'm gonna get to that in a second. And number two, well, I'll tell you why it doesn't get used. Because the first piece of it is, and the hardest, it's the hardest to overcome, is that you have to have a bed or a facility that says that they have a bed and they're ready, willing, and able to accept the person. So in this case, Jane Doe. We call up Bristol Hospital and say, Bristol, we have we have a patient, we need we need a long-term rehab bed. Can you pick them up? Uh, can you take them? That so we take that, we get the yes, we take the information to the court, then the court says, Okay, well, and then then you got to meet all the other criteria as terms of immediate need and all this. So you're running into a bunch of problems there. Number one, how who the hell am I that's gonna get through to, I mean, not me personally, but I'm I'm Joe Blow off the street, I'm calling about my daughter. Who's gonna take my call and give me the access to these beds that are like gold, right? That's number one. Number two, how am I gonna time this with the court in such a way that we can get this done in such and quickly enough so that that bed doesn't get taken? Because, folks, we all know how quickly beds get taken. So, so those are two of the problems that we have enforcing our law here. And the the second piece of the of the statute basically says, and this is really easy to overcome, I think. The statute says something along the lines of there has to be a probability that the intervention will have a positive impact on the patient or will work, basically. I've actually argued against a social services law firm, let's just leave it at that, who went into court and says, Well, she's been through this 16 times before. What do you what makes you think it's gonna work this time? And I looked at the the the lawyer and I was like, You're really arguing this right now? And the judge looked at her and asked the same question, like, you know, I know you're doing your job as a lawyer, but we're gonna let this override.
SPEAKER_01Isn't the 16 failures suggested to us that we do need to do it for the 17th time? That's pretty much the easiest thing.
SPEAKER_00Let me ask the question as not a lawyer, because so many people who listen aren't at that level of intelligence as a lawyer. Um, let me ask you this to both of you. So to a family that is in this crisis mode at the moment with their family member or loved one, is this kind of like a 1013 where you're calling and asking for crisis, you know, to come a crisis management to come out and to 1013 that individual at that point where they take him in for evaluation and then hopefully put them into a facility? Is that kind of what this is semblance of?
SPEAKER_02So that like we could kind of have a 1013 is probably referring to your state statute.
SPEAKER_00Right. But I'm saying, like, for people who are listening and they're thinking, oh, when this happens and I call the police and they take them in, then it gets escalated and then it becomes a violent situation. Is this kind of the same?
SPEAKER_01This sounds this sounds like Al Baker act, Michael, where where the state can step in and because of a mental health crisis. Am I right about that?
SPEAKER_02Well, I don't know. Every state's different. She's in she's in a state closer to you.
SPEAKER_01Where are we reporting?
SPEAKER_02I haven't heard that.
SPEAKER_01Yeah, so I okay. I'm my apologies. I thought you were also in Connecticut, but no, uh it sounds like that's some some type of mental health law. Maybe I'm wrong. It's a crisis intervention law, is I think is it well, is it for substance use or is it for mental health? Because we have a separate mental health law here.
SPEAKER_00See, we have just the mental health, like I I actually am advocate where I go on scene and I will actually call in crisis management and they will come in and they will 1013, they will involuntarily take the individual restraint or not, and put them into a facility for evaluation where that's how it goes. And so I'm wondering, is this the same thing? Because every state is different, like you guys are saying, and
Marchman Vs Baker And Rights
SPEAKER_00so many people who are listening are kind of trying to figure out is that what he they're referencing?
SPEAKER_02Well, I think that all states, I know that all states now have been given a grant through SAMSHA to train their officers in crisis intervention. And every pro every state, I assume, has a different name or a different code or a different, you know, law that they've written to go along with how we can respond in these temporary crises. You know, we we just call it our crisis intervention teams or or whatever. I don't even know what they would call in Florida or, you know.
SPEAKER_01Well, so so what what floor ever so we have two separate laws here in Florida. We have the Marchman Act, which is specific for substance use, and then we have the Baker Act, which is specific for mental health crisis. Now, not to get into the weeds, Michael, but both of them can be initiated the same way, as Victoria pointed out, right? Could pick up the phone, cops come, they take them away. The Marchman Act is rarely, there's only one county I've ever experienced where if you go in, say, for a substance use-related overdose, where the hospital, not the family, will initiate that detention, right? As a general rule, the Marchman Act is initiated by a private course of action between family and loved one. That's how it's typically done. Whereas the Baker Act is rarely done that way. It's normally where somebody picks up the phone and calls 911 or somebody went to the emergency room. It's supposed to be for mental health for a mental health crisis. Does it get abused? Absolutely. And we could spend only hours talking about that.
SPEAKER_02But that's why Victoria and I were excited about this talk with you, because there are so many layers to this. And I don't want to get too far into weeds with everybody, but this is important stuff to be able to differentiate because there are laws on the books that say here's what we're going to do to respond. And and this is, you know, I can I could play I can play devil's advocate and argue with you about whether or not marchman is a good act in terms of civil liberties, but I won't because I believe that it it is in terms of rescuing people who otherwise are not themselves. So we that's let's put that aside. We could definitely have that debate.
SPEAKER_01Let's say that we agree on all these and I can stand on both sides of that debate too. So I hear what you're saying.
SPEAKER_02Right. I mean, I think that you know, wise wiser people can agree that up these things could both be true at the same time. I think that when you look at the way that they're designed to really help people who are struggling, that's what it's all about. You know, you have to take away this overarching cloud of my civil liberties sometimes, unfortunately, and say, I won't have any civil liberties if I'm dead, kind of a thing. I I call it dying with your rights on, and I I really believe in that.
SPEAKER_01Yeah, and actually what they amended this the Marchman Act statute uh back in 24 to reflect some of those concerns. So I I mean I think your point's well taken. I hear this all the time. How can they do that? How can they do that? But you know, and any anytime we are taking away a quote, a right, there's a balancing act, right? I mean, what's we what we've got the person's rights over there over here versus you know what's what's good public policy type of thing. So I hear what you're saying, and I think it's a very fair argument.
SPEAKER_02We have laws on the books, folks, that will allow you to call the police to make, let's say, an emergency intervention that exists. You're concerned. Uh, we haven't heard from my daughter. We know she's doing heroin, she could be dead in her in her house. Please do a wellness check and go go over there. That crisis for meant for drug abuse, right? Or the guys known to be floridly psychotic. We haven't heard from him. I have all these cases in in my back pocket, you know, that I've heard of and or worked on over 25 years or 30 years. Please do a wellness check and go out there and check on him. And if if need be, you bring him to the hospital, to the emergency room. We could do the same, you know, so those go both ways. And and you're talking about two different statutes, but I think that we're talking pretty much the same stuff. The nice thing about your Marchman Act is that it gives the next level, which is okay, we've determined that you are in gravely disabled or dangered to yourself or others. I'm just throwing out legal jargon that's you're you're on the spot. We might that's what we use here.
SPEAKER_01Yeah, we do so.
SPEAKER_02So now we're going to enact this Marchman Act and we're going to take the appropriate action, i.e., get a physician's emergency certificate to put you
Court Orders Only Work If Enforced
SPEAKER_02into the hospital for further evaluation, and then from there we'll see how things go. Then on the backside of it, there's also states that have these acts that they call outpatient commitment statutes, where let's say, in this case, I'm asking this is this is a long question, Mark. You know how I can get. We're lawyers. Let's let's say yeah, let's say a guy goes through the process of crisis intervention, Marchment Act reaches out to him, he gets into a facility, they do his, they put together a plan. And now again, we're talking substance abuse at this point. And arguably, I think they could both really fall under the same banner. So let's just talk about it that way. Does Florida have a statute whereby if our Jane Doe starts to go off of the plan and go back to substances, stops seeing her treaters, stops reporting into almost like a probation officer, we'll call it for lack of a better term. Does Florida have a law where we can then say, well, we're gonna go and get you, we're gonna enact that law right now, we're gonna bring you back and have you checked out and in the facility again?
SPEAKER_01Yeah, I mean, because these are private, you know, actions, causes of action, typically, yeah. I mean, we can go in one of the things that I think it is that makes it work is is the enforceability, right? I've we have a court order that says Mark's going to treatment for the next 90 days, and whatever level of care Mark's at, Mark doesn't do what he need needs to be done. So now the judge brings us back in. We obviously file something, and the court says, Hey Mark, you know, I sent you to treatment for you know up to 90 days. You were supposed to do outpatient, and I have you know a witness here that says you didn't show up for the last two weeks. We have to have a set we have to have a conversation about that because my my order to send you to treatment was not optional, right? It wasn't like you could do it if you want or not if you don't want to. I said you're going, you're going. So here's the deal. I'm gonna find you, I'm gonna hold you in contempt, and I'm gonna give you an option. I mean, like I guess I could put you, I could, you know, I could put you in some kind of county jail, or I could put you in a a lock-down type facility, or you know, you could go back into treatment and I'll purge the contempt. So there's enforceability. Now, you know, in all the years I've done this, Michael, I don't think I've ever had anybody that that went to jail, primarily because, and I always say this, right, that people leave treatment typically because the food sucks. So if the food's good in treatment and it's crappy in the county jail, they'll probably choose to treatment. So most people ever anybody I've ever experienced said, you know what, I'd rather go back to treatment. Nobody wants to sit in the county jail. But it's the enforceability that makes it work. That's it. Okay. Victoria, did you have a question? I'm sorry.
SPEAKER_00No, no, no. Mine, it's about the mental health. I'll get there.
SPEAKER_02Well, yeah, right. So so so I agree with you that the enforceability is is huge. That you that's why I I that's why I wish we can liken it to probation. Because if you violate probation, you don't have a probation officer. It's it is a type of probation, it's like a civil probation, right? And I and I think that I think that's great. I Connecticut is one of I think six states that does that does not have an outpatient commitment statute, and we never will because of the arguments that you and I were gonna make on both sides of the coin before. I don't think it'll ever happen in Connecticut, but all the surrounding states do. And I know, and here's where we get to the enforceability question New York, Kendra's law, it's on the books, but they don't use it because it's it's very expensive and very hard for them to enforce it.
SPEAKER_01Go ahead. Mentioned Connecticut. It sounds like the statute you have on the books there in Connecticut is similar to what they have in Massachusetts. Whether it's sort of Section 35, which is their Marchman Act, or Section 12, which is their Baker Act, especially with the Section 35, you have to go to a designated Section 35 facility. Some of the setup of the county. What makes the Marchman Act, I think, very different is they can be placed into a private facility, one that's either the family pays for or there's insurance. You can use the county facility, but like the good the point that you made, Michael, is can we get a bed? And if we're going to use a county facility, I'm going to call the county facility and say, look, I'm filing this. Do you have a bed? Because otherwise I have a court order and I can't enforce it because there's no bed available. So if there's resources or insurance, that can make that that gives a family options, but it's not always something that's available. Not every family has that. Where you know, so if it's a mental health hold, you're going to the county facility. The judge sends you, you're going to because every county has those county mental health lockups. So that's what I think makes the march management different, but not everybody has resources.
SPEAKER_02But but what's the okay? So you have the enforce ability that the judge is gonna is willing to say, hey, you didn't do this, we're gonna send law enforcement out to pick you up and bring you back to a facility, v. Or to a rehab center. As I said, New York, I know because I talked to a lot of people down there, because it's you know an hour from my house or whatever, they just they they can't. It's too expensive, it's too time consuming for them to implement it given the number of. I mean, listen, it takes them almost a year to get through a guardianship application. So you know, if that's your basis for, you know, it takes us maybe a month, right? Maybe if it takes up to a year down there. So it's not, it's no wonder that it's very difficult and expensive and uh for them to enforce it. But I have heard that that's a big pushback throughout the country on these outpatient after we're we're out
When Judges Refuse To Lock Down
SPEAKER_02and we're in treatment. The big pushback is the the it's a maybe it's enforceable, but is it being enforced? I guess is is the question. Do you do you find that with when you get calls from around around the country?
SPEAKER_01Well, so that that brings up a different issue, right? I mean, you know, for instance, I mean I had a case once, Michael, where I had a guy with a he was he had one of the probably the worst substance use disorder I've ever seen. The guy was in his late 30s. If you saw him, he looked like he was 70 years old. He walked like a 70-year-old. He'd been using so long that his brain was so damaged, I mean, it'd affect his motor skills. And I put we put him in treatment. He violated the court order three times, and I could not get the magistrate who heard the case to basically lock him down for his own safety. And what happened? The guy overdosed and died. And the family called me and said, Can we do anything? I'm like, Well, what do you mean? Well, we'd like to sue the magistrate. No, I'm not uh no, and I'm no not with me, you can't. Yeah, you got it. I'm not doing I don't go down that path. I mean, we work within the parameters of the system, and it is what it is. That's it. So not every judge wants to, you know, wants to enforce things. Some judges will say, Okay, Mr. Asher, if you think there's a violation, you need to file a motion, you need to notice the person because they're entitled to due process, right? Because you're all you want me to take away the freedom, right? I've had another judge in a different part of the count of the state. If if if we file a motion, he just issues a bench warrant, like a criminal capius and says, go and get him and put him in the county jail, and then we can have a hearing. So again, I mean, it changed, it's know you're a judge, know you're the county you're in. Different judges in different counties handle these things differently, and that sucks.
SPEAKER_02You know, I mean, it's great for you and I who know the judges and know what their tendencies are, but it sucks for the people who are, you know, you try to find continuity and consistency in applying these laws, and there is none. There is none. Everyone's of its own fiefdom, and it and it's difficult. And that's I think one of the frustrations that people run into. But we, I mean, again, we can go down that road all afternoon. Um I mean, we could tell war stories until we're blue in the face, right? We could what do we have together? You know, 60 years of the doing this work, but and and throwing Victoria's
The Baker Act Black Hole
SPEAKER_02advocacy work, we've got a lot more than that. So so tell us about the Baker and what Baker does for folks.
SPEAKER_01Yeah. So the Baker Act is is the statute here in Florida that allows the state to step in and basically grab somebody and make them a temporary ward of the state when there's an allegation of some type of mental health crisis. Something like they're suicidal, right? They tried to commit suicide, they tried to self-harm. I've had people that took too many pills. I've had I had one mom who came home and found her son hanging from the ceiling. I've had people that, you know, especially minors who cut themselves, right, tried to self-harm. That's what we're talking about. And in a basically, you know, if law enforcement gets called to the scene or if you ended up in an emergency room, right, that's those are licensed agents of the state's mental health system, and they can detain you for an initial period of up to 72 hours. Now, I've been down that road because it happened to a family member of mine a couple of days after I lost my father. And and you know, you talk about civil liberties. I file about 250 to 300 cases every year to get people out of the Baker Act, because the problem with it is though is that once you are Baker acted, nobody actually knows you're there. There's no oversight. And so you basically fall down, go into this sort of big black hole, which is Florida's mental health system. And unless either the facility, the agent of the state, files to keep you past 72 hours, or the family calls me and I drag the facility into court, nobody knows you're there. So they can do whatever they want, literally whatever they want, forcibly medicate you, lock you up, violate your rights. And it's a it's a real problem here. And so when it comes to civil liberties, I'm I'm totally on board with the you know, the abuse that goes on in Florida's mental health system. And every county has these lockdown facilities, and they're they're hell holes for the most part. They're worse than the county jail. You're better off to be in the criminal system because at least if you get arrested, you get a first appearance within 24 hours, right? You see a judge, they address probable cause, write to counsel. You don't get any of that stuff if you get sucked into Florida's mental health system. And because they're agents of the state, Michael, as a general rule, absent you being physically damaged, because obviously they have a duty to keep you safe, you can't sue them for this stuff. Good luck. You're not getting any money. And I get two or three calls every day. I want to sue the facility. Yeah. Trying to help you.
SPEAKER_02Right. Victoria's coming out of her seat over there because you're getting into her one of her. If I have to hear how many times people are getting pinned down and medicated, go ahead, Victoria. I know you want to jump all over this one.
SPEAKER_00No, no, I'm I'm I'm listening, and it just you think that we could get this under better control for everybody, you know, because I see so many times, you know, and and I won't go through the whole story again, but I I talk about how I had to 1013 a si a six-year-old little girl. And it was probably one of the hardest things I've ever had to do because she was planning on jumping out of the moving vehicle on the way home. And she was serious. Like it was it wasn't a cry for help, she was serious, and she got lost in the system. And no matter how hard I was advocating, you know, I mean, she's six, but she was spot on in every way that this is what she was going to do. And the system failed her.
SPEAKER_01You had a plan.
SPEAKER_00The families don't know what to do.
SPEAKER_01Well, here's the deal, Victoria. I I hear what you're saying, and I've represented children as young as that, too, who made some kind of comment online or they made a comment in school, and the next thing you know, the school says, Okay, we're calling the police, let's get them out of here because we can't take the chance. So I hear what you're saying. I I think when that happens, it's incumbent on the family. Okay, there may be a problem here. We need to address it. Because at some point, if you don't address this issue, the state will do it for you. And if you get taken enough times, they won't give you back. You get locked up and sent to a state hospital. And I get those calls too. And talk about one floor over the cuckoo's nest. I mean, we're talking about a state hospital. It sounds like an insane asylum when people call. And the abuse that I hear about is it's outrageous. So I always tell families if there's a problem, you're going to need to address it. Because if you don't do it, unless something tragic happens, the state's going to do it for you, and you won't like the consequences of that. You won't like what you get back if you get them back.
SPEAKER_00It's so it's almost like you're damned if you do and you're damned if you don't. Because the situation that I was in is I was there and I was advocating against a woman who was abusive to her husband and their six children.
SPEAKER_02So that's your situation. I was thinking the same thing, right? I mean, her situation was so there was no way this mother and father were taking care of themselves, never mind their kids. But yeah, to Mark's point, is yeah, folks, in other words, educate yourselves, learn the tricks of the trade, listen to podcasts like ours and like Mark's, and and learn how to advocate for yourself in a way that's not going to lead you down. It's you know, do it before it's too late because the consequences can really be not what you want. They can be yeah, not pretty.
Guardianship Across States Gets Messy
SPEAKER_00Mark, I have a question. I have a question for you. So um, as an advocate for special needs and survivors of any type of abuse, I deal with a lot of, you know, going down that road of guardianship. And so I'm gonna talk about one of my clients, for instance, to maybe you could give insight. So in the state of Georgia, when this individual, it was a it was a young man before he turned 18, they kept telling him that the family needed to go after guardianship. So they went to neuropsychology and had the available and everything done from like 10 up. And they said, Oh, about a year and a half before they turn 18, we need to do one more evangel. Then you go to court before they're 18 and we start the process for guardianship. So they had executive function disorder, cognitive delay. There was a whole bunch of mental issues that were going on that that really was a no, was a no-brainer that they absolutely the family needed guardianship over their son. And so the year and a half before this young man turned 18, they went back to the neuro eval. This just went a whole thing. And then the same neuropsychiatrist from Inception who stated, go get guardianship, was like, I don't know. But their IQ was not at the mental, I hate the word retarded, but it, I mean, their IQ is about 60, this young man. And they tell him at the end, oh, right at the very end, like two weeks before he was turning 18. I don't know if you really need guardianship. But this individual can't tell time, can't late, like, can't cook. They've said you can't cook because they forget the stove is on, they forget how to leave the, you know, close refrigerator door. There's all these different things. So, what do you do when you're going under the direction of your team, your medical team, who've said from inception, and most families don't even know about guardianship if it's not put and presented to them. And then all of a sudden at the last minute, they're told, I don't know, it's kind of borderline. He can't cook, he can't clean, he can't do anything for himself. But we're kind of not thinking that guardianship would be the way to go, even though they can't do anything with money, they can't drive, then what do they do after they turn 18?
SPEAKER_01Yeah, I mean, uh again, it depends on what you know, which state you're in, you know, who your experts are. I mean, you know, Michael will tell you you can never take the human element out of the work that we do, right? In in any field of of you know, legal practice. But I mean, to me, if they've got somebody who can't manage the basic functions of life, and and you've got somebody who says, Well, you don't really need a guardianship. I mean, to me, maybe you need to go and talk to some different people because somebody like that ends up having you know, something tragic happens, and then the state does step in, right?
SPEAKER_00Now does the individual's over 18, he is over 18, and so going and getting a guardianship at this time over the age of 18 is gonna be a little more challenging than it would have been before. I mean, because the process has to start all over because this person who had been treating him since they were three, now is like, I don't think guardianship is the way to go because you're taking away their right to ever, you know, go sign into a contract or ever get married. But this individual has the mental capacity of of a young little little boy. And so the doctor changed his mind. And so then you have to go out and get an outside source, and a lot of people don't have the financial means for that, and the insurance won't cover it. So then what can somebody do?
SPEAKER_01I mean, they they their hands may be tied. I mean, to me, you know, if if if it's not going to be the family, then it's gonna need to be the state, right? Step stepping in. Now, I I don't know the I'm not familiar with all of the different laws and all the different states. But I mean, here here in Florida, if you petition for for guardianship over somebody, the court will appoint experts. We three of them, we call them an examining committee, and it's those court-appointed experts that are gonna make the decision, right? If two of the three say, yep, you need guardianship, then it's gonna get granted. So we're not necessarily relying on a family's ability to pay for an expert to come out and do the assessment. The I mean, I think the other issue, Victoria, is let's say the court grants guardianship. Okay, now where is this person going to reside? Who's gonna pay for it? Do we have the ability to get some kind of government governmental benefits that will pay for it, right? And one of the reasons to get guardianship is so that you can now apply for benefits on that person's behalf and get, you know, get Uncle Sam to chip in and start paying some of the bills to support, right?
SPEAKER_00So see, Mark, that was the problem, is because this individual client that I was trying to help the family that they were more than prepared. It was a very they're a very loving family. I'm still in touch with them now, that they were gonna allow him to reside with them ongoing. Like they weren't trying to put him into a home or anything like that. He did and does get social security, he's on disability, but they were just trying to prevent him from being able to just like, oh, I'm gonna go move out. I'm gonna go get my own place because they won't, I mean, like this person couldn't, you know, survive being on their own. They wouldn't be able to know, oh, that's gas I smell somewhere. They wouldn't be able to mentally recognize those things. And so they were more than prepared to like let them stay with them. And they were just trying to prevent their son from getting out there, going and go sign a contract that he couldn't understand, or go out there and get an apartment and be on his own. But the system failed him.
SPEAKER_01And I think part of the problem is, as Michael said, there's no uniformity. And I'll give you an example. So we have a case right now where we have the family called us, they are they are residents of Florida, they have a 20-year-old daughter, she's a resident of Florida, she has a severe eating disorder. And if we don't get her back into treatment, probably within the next 90 days, I think she'll probably be dead, to be perfectly blunt. Okay, this has been going on for a long time. Now, she happens to be residing in Pennsylvania. She's in college up there, and she told the family, I'm not coming back. So I said to the family, there's a couple of options, right? Because guardianship in Florida can be filed based on your residency, not necessarily where you're located. So I said, we could do one of two things. We could file in Florida, we've got to put her on notice. Then the question is, if we get the if we do get guardianship over her, how do we get her down here? Well, we might have we could in theory domesticate, in other words, get a Pennsylvania court to recognize it, and the court would then say, okay, you got to go with your parents, or we initiate the guardianship in Pennsylvania. So we start there instead of in Florida. So I spoke to a lawyer up there and I said, How do you guys handle this situation? He said, Well, I'm gonna need an expert to go into court with us. And I'm like, Well, we don't do that in Florida. You could file for emergency guardianship without an expert. And if and once the permanent guardianship process moves along, the court's going to appoint the experts. We don't need one. He said, No, in Pennsylvania, you gotta you gotta bring in an expert to tell the court why you need guardianship, at least on a temporary basis. So the family's going to have to hire somebody, like the point you were making, Victoria, who can tell the court, yep, in my opinion, they need guardianship. And it, you know, so that so the question is how we've had this conversation, what tactically is the best way to do this? I think we start in Florida and then we look to domesticate if the girl's not going to come down here willingly. So, because I think it's too much of a faff to deal with the court in Pennsylvania to start it up there. And it's not unusual. I mean, we've had cases down here in Florida where we're we're you know, we're in Florida, we're also in Massachusetts, and we're going battles and forwards. And now the issue is well, which court has jurisdiction? The Massachusetts court says we don't want it, go to Florida. The Florida court says, Hold on a second, you started in Massachusetts. Let the judge up there, let him worry about it. Well, and I mean there's so many variables.
SPEAKER_02And and you know, and I'm sitting here screaming at the top of my lungs while you guys are just trying to save the person, yeah. Well, that's just it. We're just trying to save this person. But meanwhile, I'm also thinking, all right, so let's say we domesticate, let's say we get guardianship, whichever one of the two bad choices you have to make. Okay, great. How the hell are we gonna get her here? What are we gonna have the police go and pin her down? Are we gonna give her a shot and knock her out? We no, we're not, we can't do that either. That brings in a whole other set of laws. So it it just that's why that magic wand we were talking about before just doesn't exist. And I make you know, as much as it sucks to say this to people, you do have to get created, you do have to know from Victoria's perspective what she's done in advocacy, what Mark's done and what I've seen. It it just becomes so there's so many layers to this onion. And and I think that we're gonna need to schedule a part two of this discussion because there's there's like we haven't even really gotten into the meat of of the topics that I wanted to cover with Mark, but I do want to touch on one thing before we wrap up this session. Well, two things. First question, Mark, is one of the things that Victoria and I questioned each other about late last night, well, late to me, not late to her, was
Insurance Incentives And Family Exclusion
SPEAKER_02one of the things that that Mark does is he he goes after hospitals. Is this correct? Do you go after hospitals that are keeping people basically bilking the system to get Medicaid or Medicare money? Is that correct?
SPEAKER_01Well, yeah. So I mean, you know, I told you I file 250, 300 cases a year to get people out. And if you know, if I was to file 100 cases, 99.9% of them would be where there is some type of insurance, whether it's you know, government insurance, private insurance, veterans insurance, that is normally the incentive, right? If there's money there, they want to keep the person. And I hate to say it, but some of these facilities will lie, cheat, and steal. They will fabricate things in medical records, they will say things that are simply not true because there's no recourse.
SPEAKER_02Okay. So the thing that's mind-blowing to me, I mean, really mind-blowing, and Victoria raised the same issue just in a different way. Uh we have, and this, I think this well, let me just say this to this this issue first. We cannot get people to keep folks in the hospitals. And so I was blown away that you have the issue that they're keeping them too long. We can't get them to keep them.
SPEAKER_01Well, sometimes so sometimes what'll happen is a family will initiate a Baker Act because you can initiate it by by going to court and petitioning the court, and the court will issue an ex-party order, and the cops will come get take the person, right? So sometimes the family, believing that the person would get treatment, file this thing, and I tell them it's not a treatment statute. It's designed for emergency stabilization only. Or sometimes the person really needs to be locked down in a secure facility. And now the family's saying, you know, I can't get the facility to keep them, to your point. And they say, What can you do? And my answer is, I well, we we could file for a guardianship, but if you're asking me to step into that that universe, that arena, I can't, because we're not a part, you are not a party to this. This is the state versus your loved one, and I don't get to tell the state to keep the person, or any hospital for that matter. Right. I mean, I can make a you know, if you want to pay me to make a phone call, fine, but they're gonna say, Well, who the hell are you? Who do you represent? Well, I represent the parents. Well, they're not a party to this. Goodbye. And we can't discuss it anyway because it's privileged.
SPEAKER_02Well, and there's another problem, you know, there's another problem, this lack of communication, this lack of inclusion of the family, who are the ones that want are winding up taking the person into their home under Victoria's. You know, you had this magnanimous family that was willing to take the individual into the home, which by the way is a unicorn. Yes, you know, but but but that family who's living with the person 24 hours a day is being is is put on the the the list of people that we expect as a resource, but we're not gonna include them in in the say of of the treatment planning. And there's just so many things that this this uh uh this we just keep digging and digging and digging.
SPEAKER_01We gotta stop digging or else we're this is why, at least in Florida, the guardianship is a very powerful tool. It it is, right? Because that's the statute that we use for well specifically for behavioral health issues. And it wasn't always that way. Uh I'm gonna get if we you get me to come back, I'm gonna bring my wife. She is I always joke, she's the guru of guardianship. I mean, she she's a she's a brilliant with. This stuff. But for I always tell families, look, if you want to have control, either you want to, you know, you want to get them into treatment, you need to use guardianship. That is the way to do this. Otherwise, at some point, either something tragic will happen or the state simply won't give them back. Because right now, until you can take back control, you don't get to make any decisions. I'm not saying it's right. I'm just telling you the way that it works. And again, to your point, Michael and Victoria as well, every state does this differently. There are some states where it's a nightmare to get a guardianship, right? It could take forever. Right? I mean, we actually have an ex parte piece to our guardianship. It's really difficult to get. But most of the times we are filing, in addition to permanent guardianship, we're filing for emergency temporary guardianship. That gets me into court anywhere between three to five days. And I don't need an expert. I just put I could put the parents on to tell the court what's going on here. And the permanent guardianship sort of tracks it.
SPEAKER_02So that's an expert order you said that that is.
SPEAKER_01Well, you can do an ex parte. I don't know if we've ever been successful in those because they're, you know, it's like you said, there's a whole civil liberties issue here, right? We want to give the person a hearing. So we can still file for an emergency guardianship, but that requires a hearing. But it doesn't necessarily require an expo like it did in Pennsylvania. I just bring the parents in to testify.
SPEAKER_02This is what's going on. We just have to. I but I want to ask you a quick question. Again, Victoria and I put this podcast together because we really want to try to offer people some solutions. It's uh we we could sit here, and I do it all the time, and a lot of families love to do it is to bitch and complain about the issues that we see in the system. And one of the things that I think is important to point out in these conversations is that yeah, let's get the grievances out there so that you realize that you're not alone, that this is not unique.
SPEAKER_01100%. You're not allowed.
SPEAKER_02And and I think that what's equally as important is to have conversations here on this podcast and podcasts like yours where people are offering solutions. And I know that we can't do that. What would you say is one thing that people should know is this is
Be A Nosy Parent And Act Early
SPEAKER_02what it takes to, you know, give us a good lesson or two quickly, you know, it in a synopsis of something that people should do right away to really get themselves in out in front of some of this stuff.
SPEAKER_01Well, I mean, I tell I tell families, especially moms and dads, to be nosy parents, right? If you get that sort of tingly feeling that something's wrong, you're probably right. But as lawyers, we need more than a tingly feeling to get us get us into the get us in front of a judge.
SPEAKER_02I've had a tingly feeling in years, Mark. I don't know.
SPEAKER_01Yeah, I can't help you with that one. But in any event, right, you gotta find out what's really going on. Ask questions. You know, are they spending are they if they become aloof, right? Are they spending time with people they never spent time with before? Are they unable to hold down a job? Are they flunking out of school? Have their eating habits changed? Are they sleeping all day and they're up all night? Right? Have you found evidence in the house of drug use? Have they admitted it? Have you seen it? Ask their friends, be nosy, find out what is going on, right? And and then you could, then there's no, I don't have an issue with you sitting down with your loved one and saying, look, is there a problem here? This is what we're seeing. And if they acknowledge it, great. Then you can have a conversation about whether or not they're willing to get help. Because not everybody needs to call me and say, help me. I'm the I'm I get that call when the person, when the family says they will not go to treatment or they will not stay in treatment or they won't take their medications, right? But if they're willing to do it, then great, you don't need me, which is a beautiful thing. You know, I'm not needed on every single case, but you've got to find out what's going on and you've got to address it. And one of the issues I deal with, Michael, is that is this sort of psychological component where either the family says, eh, you know what, it'll pass. Or you get mom's mom, one parent says, it's fine, you know, it'll just pass. Or dad says, No, I'm done. They're out the house, goodbye. Well, enabling and andor, you know, kicking them out of the house doesn't solve the problem, right? If they're not able to make the decision to save themselves, then then the parents have to come together and say, okay, we got to come together and we gotta and we have to come up with a plan, and we have to be the ones to make the decision. Otherwise, severe consequences happen, people die, or the state will step in. I mean, that's just the way it works. But I tell families, find out what's going on. Don't just say, oh, well, it's a phase. It ain't a phase. That's not how it works, right? It will get worse.
SPEAKER_02That's how this disease works. And that goes back to your gut feeling, the tingly stomach, you know, you got a feeling going on, and it's just something ain't right. Right.
SPEAKER_00They don't need you to be their friend, they need you to be their parent.
SPEAKER_01Yep, you're right. And I get it, you know, and sometimes families say, well, they'll be mad at me. Well, my response to that is number one, this is not your loved one. I know it looks like them and it sounds like them, but they ain't running the show. At some point in the past, their mind got hijacked, and now the disease is running the show. So that's number one. Number two, they might be mad at you. And it might be for 30 days, it might be for 90 days. But at some point, that's going to change. But it's going to take a little time. And while they're doing their thing. What's that?
SPEAKER_00At least they'll be here to be mad at you.
SPEAKER_01You know, I've seen that. I had a uh a family I woke with, their son was smoking way too much marijuana. And the first time I saw them in the courtroom, he would, I mean, he just got in my face. He was really not happy. 90 days later, I saw him again. It was like, it's like Jekyll and Hyde, it was a totally different kid. He's like, thank God. He's like, thank you for helping me. I I was out of my mind. Right? It just takes time for that to occur. And I think part of what we do, Michael, is saying to clients, look, this is what you can expect. And if they know it's coming down the pipe or might be coming down the pipe, it's not such a shock when their loved one says, F you, I'm not doing this. I hate you. I never want to speak to you again. Because that's shock for parents. So if you can prepare them and say, look, this is what might happen, this is what we've seen, we'll cross that bridge when we get to it. But just know if it's if this is what happens, it's not unusual. It will change. And that's part of what we do as counselors, right? It's really giving our families counsel, which is why I get so frustrated, Michael, when I see lawyers coming into the space because they see the quick buck and they have no experience, they don't know what they're doing. And like you and I, I mean, we've been doing this for years, and they don't warn the clients, they don't give them good counsel. It's not just about running to court and filing papers, it's it's a whole lot more than that. Because for the most part, you don't even need a lawyer to do that, right? Or you can go hire the cheap lawyer. But if you want this the real solution, you gotta you gotta find somebody that actually knows how this stuff works, and they're willing to go the extra mile to what to come up with a game plan that can save your family.
SPEAKER_02So I know that was a long-winded answer, but no, that was you know when I met you.
SPEAKER_01I said, holy smokes, this is a guy that's been doing this stuff for as long as me.
SPEAKER_02Right. There's not too many of us, and that's a problem. But you know, I I think that's a perfect way to wrap up this part one of our discussion with Mark Astor, because I have a lot more notes that I've been writing down here. So I'm gonna wrap it up there, and we are gonna ask Mark to come back for our next episode. And because he and I are are talking about unicorns. Mark and I are unicorns in this field, and I'm just happy to meet a kindred spirit in it. And thanks a lot for being here with us today.
SPEAKER_00Thank you so much.
SPEAKER_01Well, uh Michael, I you know, I enjoyed getting to know you. We've only just we we've we've sort of connected in the last month, and I I I'm really I'm grateful for the work that you do because it does take a village and it takes people that you know, a lawyer in Pennsylvania or a lawyer in Connecticut. We just can't do this alone. And so I'm grateful for you and I'm thank you for allowing me to come on here and share what I do.
