When Mental Illness or Addiction Puts a Loved One at Risk: How Guardianship Can Help Families with Mark G Astor - Episode 265

In this powerful episode, host Diane Carbo, RN sits down with Mark Astor, attorney and founding partner at Astor Simovitch, who specializes in helping families navigate Florida’s legal system during behavioral health crises 🏛️.

🔥 What You’ll Learn in This Episode

• 🧠 Rethinking Guardianship: Why guardianship isn't just for aging adults with dementia—and how it applies to addiction and mental illness.
• 🚩 Recognizing the Red Flags: Subtle and obvious signs that a loved one can no longer make safe, rational decisions.
• 📜 What Guardianship Actually Does: The ~12 legal rights that can be temporarily transferred to a guardian to ensure safety and treatment.
• ⏱️ Temporary vs. Permanent: Why legal intervention in behavioral health is usually a 1-year journey toward restored independence, not a lifetime sentence.
• 🕊️ Overcoming the Guilt: How to move past the emotional conflict of legal intervention to prevent catastrophic outcomes.
• ☀️ The "Florida Advantage": Why Florida’s laws (like emergency temporary guardianships and virtual family testimony) make it a central hub for family-led recovery.

📋 Episode Outline & Timestamps

• Introduction: Host Diane Carbo, RN sets the stage on the fear, heartbreak, and legal uncertainty surrounding severe behavioral health crises.
• Mark Astor’s Journey: From trying 200 jury trials as a prosecutor to finding a passion for helping families in crisis.
• Guardianship in Behavioral Health: How mental illness and addiction rob a person’s decision-making ability—and where the legal system steps in.
• Warning Signs & Red Flags: Uncovering the behavioral shifts, hidden substances, and denial patterns families must watch for.
• When to Speak with an Attorney: Knowing the exact point when a loved one is no longer in control.
• Why Florida Legal Frameworks Work: How emergency temporary guardianships (granted in 2–4 days) and virtual court appearances empower out-of-state families.
• What Rights Are Transferred? Explaining medical oversight, residence control, financial safeguards, and driver’s license restrictions.
• Navigating Family Guilt: Reframing action vs. inaction—getting comfortable with temporary discomfort to save a life.
• The 1-Year Recovery Roadmap: Why 30-day rehabs often fail and why a full year of structured, continuous care is key to long-term success.
• First Steps for Families: Free resources, initial consultations, and taking action before crisis strikes.

🌐 Connect with Mark Astor & Legal Resources

• 🌐 Main Website: Mental Health & Addiction Law Firm
• 🏛️ Baker Act Resources: Baker Act Attorneys
• 💼 LinkedIn:Mark Astor on LinkedIn
• 📘 Facebook: Astor Simovitch Law | Boca Raton FL
• 🐤 X / Twitter: @AstorSimovitch
• ▶️ YouTube: Astor Simovitch Law
• 📷 Instagram: @astorsimovitchlaw

🎧 Don't Wait Until It's Too Late!

If you feel trapped between love, fear, and uncertainty, this conversation offers clarity, practical steps, and—above all—hope 🌟

Podcast Episode Transcript

Diane: Welcome to the Caregiver Relief podcast. I'm Diane Carbo, RN, your host. Today we are talking about a painful and frightening situation many families face. What happens when mental illness or addiction puts someone you love at risk?

Families often try everything. They offer support. They encourage treatment. They set boundaries. Most are bad at that though, I will tell you. they hope that the next recovery attempt will be the one that works. But sometimes despite every effort, a loved one continues to make unsafe decisions, refuses help, relapses, or becomes unable to manage their own care, finances, treatment, or safety.

That is when families may begin to ask difficult questions. Do we have any legal options? When is guardianship appropriate? What does it actually do? And how can families protect a loved one without feeling like they are taking away their dignity? My guest today is Mark Astor, attorney and founding partner of Astor Simovitch, and they are dedicated to helping families and individuals affected by substance abuse use and mental health disorders.

Mark began his career as a Palm Beach County assistant state attorney and has handled thousands of cases from misdemeanors to capital murder. He has also been recognized by USA Today for his work in Florida's mental health and addiction legal system. Today, Mark helps families understand the legal tools that may be available when a loved one is in crisis and traditional recovery efforts have not been enough.

This is an important conversation for caregivers and families who feel trapped between love, fear, responsibility, and uncertainty. Our goal today is to help you understand what guardianship may mean in behavioral health cases and when it may be time to seek legal guidance.

Diane: Mark, thank you so much for joining me today.

I know this topic very well after 54 years of nursing. I've seen many scenarios of it, so I was glad that I found you and you were willing to share your information with us.

Mark: Well, I am delighted to be here. I'm flattered that you asked me to be here. And, you know, I've been practicing law 32 years now, so I feel like I feel like I'm way behind the eight ball compared to you.

So I'm a rookie at this compared to you. So I appreciate you allowing me to come and talk to you, but more importantly, all the work, the important work that you've been doing, and really it's amazing. So thank you for that.

Diane: Before we get into the guardianship, Mark, can you share what led you to build a law practice focused on helping families affected by substance abuse, mental health disorders, and failed attempts at recovery?

Mark: Yeah, so let me take a, take just a few minutes to explain a little bit about my background.

So, you know, it's interesting. people ask me, were you a good law student? Were you passionate about the law?" And I'll be honest with you, I really wasn't. I was in, I was, I think I was in the top 40% of my class at law school.

I was one of these, these kids, these law students that, I'd... If a class started at 9:00, I'd walk in at 8:58, right? Meanwhile, there's probably a, a couple of students who had been, they'd already been there for two hours poring over the latest case law. And I'm like, "Why? I'm just here.

I just wanna get through the class, pass the exam, and then take the bar and be done with it," right? And it just, it didn't really, it didn't really resonate with me. A lot of the stuff didn't make sense. and then, I got an opportunity to intern with the Palm Beach County State Attorney's Office in 1993, and I did it because I said, I shouldn't graduate law school without having some experience in the courtroom."

So here in Florida, you can become what's known as a certified legal intern. You take a trial ad class, you take an evidence class, you take a, I think, a criminal procedure class, and they certify you, and then you can work at either the State Attorney's Office, you can work at the Public Defender's Office or the State Attorney General's office.

And I decided I wanted to work for the Prosecutor's office. So, I was very uncomfortable in the courtroom, but I said, "I'm gonna do this anyway." And I will tell you that five minutes into my first real trial, because as an intern you are allowed to try cases, everything clicked for me. I said, "This is it.

This is, now it makes sense," right? And now I understand the rules of evidence. I understand what a direct examination looks like. I said, "This is where I am supposed to be." And so ultimately they hired me right out of law school. I was there from 1994 to 1999, and as you pointed out, I tried all kinds of cases.

I spent five years in literally doing nothing but trying cases. I tried 200 jury trials in five years

Diane: Wow

Mark: which is an insane amount of trials. I was always in trial. and I probably tried just as many non-jury trials. So I spent a lot of time trying cases, and I was really passionate about the work.

I mean, the first two years out of law school I was living at home with my parents, so being a government lawyer does not pay well. But especially the last 18 months when I was there, when I was in a felony trial unit trying first and second-degree felonies, and I'd have either the victim of a violent crime, or if it was a murder case, the family of a decedent I felt very passionate about getting those people some justice and some closure, right?

I couldn't un-ring the bell, but I could help them to move on. And so I was one of these prosecutors, if I was going to trial, I was going to trial to win, and I was prepared. I wasn't, Unfortunately, some of my colleagues used the prosecutor's office as just sort of almost a semi-retirement plan, and they just go in and go through the motions.

That was not me. That, and I've never been like that. but after five years, I'll be honest with you, Diane, I was tired, and I left the office. I did some defense work. I made a lot more money, and I was completely miserable. I also got married at 34, and I was divorced at 35. So here I was divorced, and I'd lost my passion for practicing law, and I tried desperately not to do that. So in 2004, I actually took a year off. I moved to Washington, DC. I really wanted to get a master's in law, so I went back to school, got a master's in law, which I think only about 10% of lawyers have. I also worked on a presidential campaign 'cause I had a passion for politics.

At the time, I wasn't even a US citizen. I couldn't even vote, but I felt-

Diane: I was wondering in my mind I could I'm asking.

Mark: not vote

Yeah, I... So here I was

Diane: Where are you from?

Mark: I'm originally from the United Kingdom. I moved here in '87- I thought so.

Diane: Yeah

Mark: right before my 21st birthday, so

Diane: Yeah

Mark: I'm almost 60, so it's been

Diane: Yeah

Mark: close to, you know

Diane: A long time.

Mark: It's been a long time. I've spent two and two thirds of my life here, and I'm passionate about being an American. But here I was working on a presidential campaign. I started off as a volunteer and spent a year working on the campaign, became an important member of the legal team, became a part of the advance team.

So I really got involved, but the candidate I worked for didn't win, so I wasn't getting a job out of it. So I had to come home. And I, again, I tried not to practice law because I just couldn't get into it. I didn't care about the money. I wanted to have some passion. I wanted to feel good about what I was doing.

Diane: Yeah.

Mark: And so in 2012, I ran off to California, right? I just literally left the States, said, "I'm going to California," and I spent three years there, having a good time, enjoying the bachelor life that one can enjoy in Southern California. And I spent... And I also took the California Bar while I was out there twice and failed it twice.

So after three years, I was broke. I had to come home. And I said, "Okay, I'm gonna take one more shot at this," because I had a, a friend of mine who was out there, and the first time I took the California Bar, he was taking it for the third time. He had been a public defender in Dade, Miami-Dade, while I'd been a prosecutor in Palm Beach, and he said, "I'm gonna, I'm gonna open up a criminal defense practice.

Take the Bar, pass it, and, we'll build a business together." he passed it, and I didn't, so I had to come home. And long story short is that in 2012, I met somebody that changed the direction of my life. after I took the Bar exam for the third time and failed it, I said, "Okay, maybe I'm just not supposed to be there."

And then I got invited to this breakfast meeting. I met a guy, his name is R. John Robbins, and he teaches lawyers the one thing that no law student at any law school anywhere in this country learns, and that is the business side of practicing law. Okay? I heard him speak to a group of about 20 lawyers, and it really resonated with me because I came from an entrepreneurial background.

I had a dad that left school at 14 and a mother that left school at 16, and my dad built businesses. Some worked, some didn't. Some made money, and some, did not. They were a financial disaster, and I learned a lot from those experiences too. And I said, "Okay, this is cool," right? I could be an entrepreneur and be a lawyer.

Long story short is I begged the guy for a job. He hired me. I spent a year there learning all about the business side of practicing law But what I did not know when I went to work for him, at least initially, was that what his company really is at their very core is that they are a personal growth company for lawyers.

And there was two things I took away from that. Number one, the reason I'd been, you know, unhappy personally and was broke financially was 'cause I'd failed to take 100% responsibility for my decisions, both personally and professionally. And two, if I was finally going to open up my own law firm, I was gonna need to find a group of people that I could really help, that I would feel good about helping, and I could build a business around that.

So in 2016, February of 2016, while I was broke and living at home with my parents, I sat down in the library here in Boca Raton, where I live, which was the same library I'd studied for the bar exam the third time, and opened up my law firm. I had family members and friends who had these issues. Nobody had built a law firm helping these folks, and that's what I did.

And I created a spreadsheet on my computer, and I started to call people. I hadn't lived in Florida for three years. I hadn't practiced law in five years, and I made... I got really cheap business cards made at Vistaprint. I ran around to treatment centers. I handed out my business card, and I said, "I'm here to help people."

And I did not get a call for 14 months on a behavioral health case. So in the meantime, I took all kinds of different cases. I took criminal cases. I represented a student athlete who got himself in hot water with a female student here in, in a university in Florida. I co-counseled some family law cases.

I took what I could to pay my bills. 11 months in, I lost my dad unexpectedly. and I think I maxed out every credit card I had to pay for a funeral, and I had to pay I had to buy a plot for my mom, which I financed over five years and paid on time every month for five years. and things were hectic, but I was very determined.

I really was. I really found out what I was made of in 2016. and I was able to get. After the first year, I was able to get a small office where I met my now wife, and, my wife had a background in guardianship law. She'd lived in Boston, Mass for about a dozen years where she was married to husband number one and had her children.

And we figured out we could use guardianship, which was really traditionally designed for elderly people, and apply it to some of these cases that we were handling down here. And for the first seven years, Diane, it was just the two of us doing everything. Sales, marketing, meeting with the clients, drafting pleadings, running to court.

I mean, eight days a week, 25 hours a day. even now, almost 11 years in, I still work six, seven days a week, but I do it because I love doing it.

Diane: Yeah.

Mark: And so for seven years it was just the two of us. It's only been in the last three years where the business really took off because people were finally all over the country were starting to hear about us.

We were able to hire staff, and now we're a team of about 15 people. So,it's been

Diane: Wow

Mark: it's been a journey. And, these days I don't really take that many cases personally. I spend a good chunk of the time, doing presentations. I mean, between now and I think the end of November, I've got 15 different speaking engagements

Diane: Yeah

Mark: in person, plus a bunch I'm doing online. and that's what I enjoy doing, is sharing the message, because if nobody knows about you, how can you possibly help anybody, right? And that's been the biggest, hurdle, right? is finding families that need our help, because they come to us and say, "We never met a lawyer who does this work before.

You know, where have you been?" Well, I've been here, it's just I wasn't yelling loud enough, right? Right. So, you know, that's why I'm so grateful for the opportunity to talk to you, because hopefully families will hear this and they'll say, "Oh, wow, there's a potential solution to the problem here." So that's a little bit about my journey.

Diane: Mark, I'm glad you shared your story. I love your journey because it's made you tough. It has. But it's also you found your passion, I did. And I understand that. when families hear the word guardianship, they immediately think of aging parents or dementia.

I don't, but and I guess it's because I've had some different experiences. But how does guardianship apply in behavioral health cases involving addiction or mental illness?

Mark: Yeah. So that is, that's just a great question, Diane. I think the big issue for a lot of families is, is appreciating that, that behavioral health and I'm gonna lump them together because these days it's very rare that you see just one or the other.

Diane: Yeah.

Mark: They're typically together. It's difficult for families to appreciate the fact that it's a disease, and it's a disease of the mind

Diane: Yeah

Mark: And one of the things that it does as a result is it robs their loved one the ability to, number one, appreciate the fact that there's actually even anything wrong, right?

And two, it robs them of the ability to seek the necessary treatment so that we can get the, the disease into, you know, we call it recovery, but, if it was cancer, we'd be calling it remission, but it's the same type of thing, right?

Diane: Exactly.

Mark: It's going to treatment and staying there long enough in a clinically appropriate facility and doing the other things that are necessary to not only experience recovery, but be able to maintain it, potentially forever, right?

And so if we can appreciate that, the fact that it is a disease that robs the person the ability of the, of decision-making power Then the issue becomes, okay, if they can't make the decision to go into treatment, who's going to make it, right? Because they can't make it. Well, could the state do it?

Yeah, I guess the state, in theory, could do it, and the state does do it either through the criminal justice system or the mental health system.

Diane: Yeah.

Mark: In my experience, the state doesn't do a great job of that. So if we don't want the state stepping in, then the family needs to step in. One of the vehicles, the legal vehicles that we use that gives the family the ability to step into their loved one's shoes and make those decisions is guardianship.

The Marchman Act is also a tool that we use, but guardianship is a very special tool because there's about a dozen rights that we can basically take away from your loved one and give to the guardian, typically the parents, right? And now they can make the decisions their loved one cannot make about going down that road of recovery, and that's what is special about guardianship when it's done correctly.

Diane: I've dealt with, I've dealt with senior behavioral health. I've been in behavioral health. I work behavioral health. That's why I see guardianship different than other people, I think. I've also worked in rehab where we worked with head injury survivors.

And, the problem is, I agree with you, the state does not do a good job when they take care of these, these kinds of cases. And, what I learned about what you did, I'm thinking, this is wonderful because it actually gives the family the opportunity to have a say in their loved one's care, which is doesn't happen, when the state gets involved sometimes. And, the state's cold-hearted. I'm sorry.

Mark: Yeah. and and they have lots and lots of cases, right? And everybody and the folks that work

Diane: Yes

Mark: in the state system

Diane: Yes

Mark: only have a certain amount of bandwidth.

Diane: Yes.

Mark: There's also, in my experience, very little oversight- in the state system. You know, we have the Baker Act here in Florida, which is our. Our involuntary commitment statute And every state has a version of the Baker Act

Diane: Yeah

Mark: The big problem with the Baker Act is that once the state takes custody of somebody, nobody actually knows you're there, so there's zero oversight.

Diane: Yes. Yes.

Mark: Yeah. Well, if there's no oversight, and as a general rule, you cannot sue if they, if they don't do things correctly then what's the motive to get it right? Yeah ... and that's the, a big problem. I mean you know, as an aside, I, file about 300 cases a year to get people out of the Baker Act who shouldn't be there, so that

Diane: Yeah

Mark: so we can give decision-making authority back to the family.

Diane: Yeah.

Mark: But the guardianship process is about empowering families. That's what it's really about. That's what we do. We empower families and say, "Look, We're gonna give you the ability to make, start making the decisions so we can get your loved one into treatment.

And at some point down the road, probably a year from now, 'cause that's what true recovery looks like, we're gonna give them back their, the ability to make decisions for themselves when they can make those decisions that are what we would consider objectively rational." 'Cause we don't wanna be involved in their lives forever.

We just wanna get them on the road to recovery.

Diane: See, that's something I've never heard before. When I hear guardianship, I hear and with the state, I always think that they're never going to get out of the system, the, and that they're, they are. They're truly going to be lost in a system that nobody knows anything about them or has, and is invested in their, outcome.

And, I've seen that in my 50 years of nursing. So I was... I'm glad that we're having this conversation, 'cause I think so many listeners out here, with a family that a family member that has a mental illness or an addiction problem, that it can be addressed in a more dignified manner, through a company like yours, a business like yours.

So what are some warning signs that a loved one may no longer be able to make safe decisions for themselves?

Mark: Yeah, you know, you're asking some... I love these questions you're asking, Diane. 'Cause I think I... My gut tells me you're seeing the same thing I'm doing, I'm seeing, but just from a different perspective.

So thank you.

Diane: Yes. Yes.

Mark: So there's definitely red flags. there really is, right? It's not some- It's not like somebody wakes up one day and, now they're living, effectively in a different universe. So just a couple of things, and I tell families, be nosy about what's going on in your loved one's life, but certain things, right?

Perhaps there's drug use and they've admitted it. We found drugs in the house. Alcoholics are renowned for hiding empty alcohol containers anywhere and everywhere they can possibly be found. So there may be evidence in the home. Maybe you've seen them using, okay? But even if you haven't, their just their habits have changed.

They're hanging out with people they never used to hang out with. They're aloof, right? They don't want you knowing on what's going on in their life. Maybe they're not able to maintain employment. Maybe they flunked out of school. Maybe they are sleeping during the day and they're up all night.

Their bathing habits have changed, not for the better. Their eating habits have changed, not for the better. They've been arrested. They've been, Baker Acted, sucked into the mental health system, right? And these things tend to ha- tend to happen, and they ha- more often over time. So you know, I always sort of- I say this tongue in cheek, that moms are the best, you know, are the best, folks to notice these issues because I, for some reason I...

And I know this from my own mom, who's 83 years of age. moms have ESP. Moms instinctively know when there's a problem, right? And maybe it's a subconscious thing, but they start to feel these things. But at some point, there's so many red flags here, that it's almost impossible to ignore it.

Diane: Yeah.

Mark: So there are warning signs. Yeah. and I tell every family, "What's really been going on here?" And sometimes it's about having that conversation with the family Right? Because sometimes they're in denial too, right? they don't want to believe there's a problem.

Diane: Exactly.

Mark: Yes. And it's not, this is not an indictment of the families.

They just don't want to believe there's a problem because there's a certain stigma attached to it. And especially when it comes to mental health, sometimes what happens is the family gets into the blame game. Oh, he's got depression. Well, that's because your grandfather was a manic depressive, right?

He's got schizophrenia. that's 'cause your grandmother was a schizophrenic, right? So they start to play the blame game, which in my world is just not acceptable. It... I don't care if grandma had, was a schizophrenic. It doesn't matter. Yep. How do we move forward?

Diane: Yeah.

Mark: That's the question here, right?

And so there's typically a lot of warning signs and it gets worse with time because it's a progressive disease like any other disease. So how do we move forward? What are the signs? What have you tried? What's worked and what hasn't? And all of those things, and it's about what we call, and you relate to this, we call it triaging the case, right?

Diane: Yep.

Mark: What's the history? Tell me what's been going on here.

Diane: Yeah.

Mark: Because inevitably it's not something that happened, you know, one day they woke up and there was a problem.

Diane: Yeah.

Mark: This has been going on for a long, long time.

Diane: Exactly. that's what I have always seen, and denial is, a coping mechanism that does no good for any of us.

And the dysfunct- especially in, any of these cases, the family dynamics are always, dysfunctional as well. They're afraid to talk about certain subjects, so they ignore them, and, it does, it just allows things to get to a point where somebody's injured or hurt or, on, at death's door.

And then I look at, and Mark, right now we have states in the country where they provide Narcan all over the place. How in the world are we living in a world where it's okay to OD and then be saved again by a drug so that you can do it all over again? We've missed the point about providing, dignity and, a wellbeing to these individuals.

We're allowing them to harm themselves over and over again, and I don't get that. I have no comprehension of that. and I know families struggle with that because once they get, if they're in an area where they can do drugs, do the Narcan, do drugs and do the Narcan, the families are, they're no longer in their lives very much.

They're out in the streets. so I know that they, families struggle, when a loved one refuses treatment. At what point should they consider speaking with an attorney about legal options?

Mark: Yeah, and I think that's very much a subjective answer. When, I think, and I tell every family, "Listen, if you, once you believe there's a problem, I think that it's incumbent upon you to have a conversation with your loved one."

Diane: Yeah.

Mark: I mean, does every person that has a problem, do they all need us? I would submit probably not, right? Are there individuals who are not so far down the proverbial rabbit hole, they can say, "You know what? mom and dad, I have a problem and I can't seem to get it under control. I need help." So I think the first thing that should happen is you should have that conversation, but if they have that conversation and their loved one says what we see a lot of, "There's nothing wrong with me.

I am perfectly okay."

Diane: Yes. "

Mark: I'm fine. You're the one that needs to go and see the psychiatrist or going to treatment," right?

Diane: Yeah. At that point, you know they have lost the power of control over this thing whatever this thing entails, right? That's the point in which I think it's worth having a conversation with us.

And not everybody is gonna be like, not every case is, really needs us, right? and

Diane: Yeah

Mark: really it's about giving families options.

Diane: Yeah.

Mark: I'm a big fan of interventions when it's done by somebody who's actually qualified to do an intervention.

Diane: Yeah.

Mark: Maybe it's a combination of both.

Maybe it is a good fit for us. So, you know, I think once you realize they are not in control then we need to say, "Okay, how do we get control of this?" Because now it's out of control.

Diane: Yeah.

Mark: And that's where I think we can help. That's the point in which I think you need to pick up the phone and have a conversation with, or at least, do a little research, and I've got a ton of content out there you can read.

I have a book about the Marchman Act, right? Start doing some research about what can we do, what options are available for us to get control here, 'cause you're gonna need it.

Diane: I think that's the biggest thing you're making people aware of on this this podcast, is they actually have options. Families often time don't realize they have options.

That, you know, the system will tell them, the legal system or even the medical delivery system says if they're seen in their right mind and have not been deemed incompetent, then we have no legal action. I've heard that many times over my decades of nursing, and I'm thinking that made me crazy.

And guardianship was not even discussed as a possibility when in fact, here you are telling me that it's possible.

Mark: Yeah, and it, really depends, Diane, where you're located. there are some

Diane: Yeah.

Mark: Florida happens to be a great state to do all this. So families say, "Well, I'm in California."

You know, I've had people coming from California or New York. Yeah. I've had a case that came in from Hawaii. So coming to Florida is a good place to be 'cause we have good treatment here now. Now. And we have, the guardianship statute. It is much easier to get even an emergency temporary guardianship here in Florida, which we can normally get within two to four days, than it is, say, in Pennsylvania.

I had a call with a family up there who has a, an adult child who's got an eating disorder, and you know The conversation was around how do we get her down here to get her into treatment. So I had a conversation with a Pennsylvania guardianship lawyer. It is difficult up there.

They need an expert to come in and tell the judge, "This is why we need a temporary guardianship."

Diane: Yeah.

Mark: I don't need that in Florida to get an emergency guardianship. I'm gonna put the parents on. They're gonna tell the judge, and the judge will say, "Yep, sounds like we have an emergency.

There's a, there's an imminent risk to this person. I'm giving you a 90-day guardianship. We'll send the experts out to decide if this should be permanent, but right now you need authority. daughter, son, whoever, guess what? I've just appointed your parents as the guardians. You're going to treatment."

Right now, right? so it's much easier to get it done here. and Diane, we have judges that are really switched on to this stuff. I have to give credit to our legal system, especially our judges. we are really switched onto this stuff down here, and there's some judges, you know, all over the state that are really, you know, that really advocate for this kind of work.

And so kudos to our profession and our judges here. I wouldn't say that's the case in every state, right? But it's certainly in Florida. And our legislators, right? We have, we've modified our involuntary commitment laws just in 2024 to make it easier for families just to testify. We now allow families to testify virtually.

So for families in New York or California, they don't have to get on a plane anymore. They can testify on Zoom. That's great. First of all, you don't have to schlep them all the way down here, but two, now they don't have to be physically in the courtroom looking at their adult child and having an a- this adversarial position with them, right?

So it's more comfortable. Yeah. So I mean, we're just better at doing it, quite frankly, down here in Florida.

Diane: You are 'cause, I'm a girl born and raised in Pittsburgh, Pennsylvania, And I have lived all over the country, but a lot of my nursing practice over the years was in Pennsylvania.

But I also was in Minnesota, where they were very different, and, Colorado. I spent a year out in California, and, my son is a mental health, practitioner, a nurse practitioner, in New Hampshire. So the rules are different. And, I get angry when I hear that, Pennsylvania is... I mean, it literally took an act of God to get someone, committed or even seen.

I now realize that there are... I'd have to move out of the state to get treatment. Come to

Mark: Florida. We'd love to have you, Diane.

Diane: Oh, I love Florida. I absolutely love Florida. what does guardianship allow a family member or an important appointed guardian to do, and what does it not allow them to do?

Mark: Yeah, so there's basically 12 rights that we can take away. And again, we can tailor this, because our guardianship statute allows you to get control of the person and the property. So it might just be, we wanna be able to make decisions regarding th- where they live, who they spend time with, that they're going to treatment.

Maybe we need access to their medical records so we can see what's going on here. maybe we want to restrict their ability to travel so they don't get on a plane and leave. Maybe we want to take away a driver's license so they don't drive drunk or high. Maybe we want to apply for benefits for them, Diane, so that we can get Uncle Sam to pay some of the freight.

We can do other things like taking away the right to vote. We can control their finances, and it may be maybe... You know, I had one lawyer I put into treatment, right? the wife was petitioning for guardianship over him because they had a law firm, and she needed to get in there and not only just control the trust account but, you know, write checks for the staff and pay the electricity bill and the rent bill and all that thing.

But maybe there's money there sitting in a bank account, and we want to take control of it so they don't use it and blow it, right? 'Cause I've seen that happen, too. So there's about a dozen rights that we can take away. But not everybody. We don't need to take, not always need to take away those dozen rights.

Sometimes we might be dealing with somebody who has a, where there's a trust.

And there's a pot there, and there's a trustee, and the trustee is hiring us so that we can, make it so that the family can get control and start making decisions for this person- Right?

The trustee, has the authority to use some of the trust money for the benefit of the beneficiary. So there's basically 12 rights we can take away and give to a guardian if we need to. Now, sometimes the parents don't wanna be the guardian. Okay, we'll hire a professional guardian.

Let that person make the decisions. In terms of what the guardianship does not do, it does not entitle the, the guardian to put the, to put the person at risk, right?

Diane: Yeah.

Mark: You still have a fiduciary responsibility. Now, obviously, if for instance, and the classic example is if they've been drinking, don't give them the car keys, right?

Don't put them in danger, right? Don't do things that make things worse. So you have a responsibility to do what's in the best interest of the guardian excuse me, of the ward. But other than that, you're just there to make those decisions, and if, obviously, if somebody's in treatment and they're doing what needs to be done, you're just in the background there.

It's, you don't have to be the, you don't have to be on top of them, right? You don't have to be that helicopter pilot, a helicopter parent, where you're on top of them. You're there to make the decisions when they need to be made. That's it, right? That's it. And I know a lot of families say, I don't wanna get sued if, for something."

Yeah. Well, if you didn't put them in danger, then then you probably wouldn't be liable. But you can always get sued, right? you look at somebody the wrong way, "I'm suing you. You caused emotional distress." And I say to families, "It only takes two things to get you sued, a finger and someone to point it."

But as a general rule, if you're doing what's in the best interest of the ward and not putting them in danger, there's not an issue

Diane: So now families often feel guilty as if seeking guardianships means they're taking away their rights. How do you help families think through that emotional conflict?

Mark: Yeah, and there is that emotional conflict, right?

Diane: Oh, yeah.

Mark: You know, no, I feel really guilty. I get it. They're gonna be angry at me. Well, at least initially, but, and I know it looks like your loved one, sounds like your loved one, and walks like your loved one. It's the proverbial duck. But right now it ain't them.

They're not running the show.

Diane: Yeah.

Mark: But in terms of that, the guilty feeling, I completely get it, and I think it's okay with feeling that way. And I say to families, "Look, I get it. I don't want you to ignore those feelings." "But what's the alternative? Doing nothing?" Yeah. "If you do nothing and something catastrophic happens

Diane: Yes

Mark: or they end up in prison or they end up in a state hospital

Diane: Yeah

Mark: how are you going to feel then?"

Diane: Exactly. Yeah.

Mark: So are we talking about the lesser of two evils? Maybe. But if you want to get your loved one back, I'm gonna need you to get a little comfortable with being uncomfortable for a little while.

Diane: Yes. Absolutely.

Mark: And we're here, right? We're not just filing a bunch of papers and saying, "Thanks, Diane. Good to see you. Thanks for the money." Yeah. we're on the journey with them, which is why I don't do other areas of law, right? I don't do car accidents and criminal defense work.

If you have a car accident, I'll send you to a good PI lawyer. Get arrested, I'll send you to a good criminal defense lawyer. I don't handle those cases, okay? And I'm not handling thousands and thousands of cases. I have a very much of a boutique firm, and I have a team and a firm that's built to do one thing.

That's to go on the journey with you. That's it. So we're there to hold your hand. We'll cross each bridge as we get to it, and there are going to be things that are unpredictable, right? The one thing predictable about somebody with a behavioral health issue is they can be unpredictable.

Diane: Oh, Lord, yes.

They can, yes.

Mark: They can have a good day and a bad day.

Diane: Yeah.

Mark: They can have a good morning and a bad afternoon. Yeah. They're in treatment, they walked out. They're med compliant, they stop taking their meds.

Diane: Yes.

Mark: They're fine today, they had a psychotic break tomorrow.

Diane: Yeah.

Mark: These things are unpredictable, and I tell every family, recovery's a bit like the stock market, right? It goes up, it goes down. Especially lately, it goes up, it goes down. Yeah. But if you stay the course, the trajectory is upwards. But you gotta be willing to take the up and down. You gotta expect that to happen.

And I tell every family, "This is gonna be unpredictable for a little while, but the further down the road we get, the more predictable things become, the more stable they become." Yeah. Yeah. "But it's going to take a little time to get there because this has been going on for years and years, and we're not fixing this in 30 days.

It just doesn't happen."

Diane: Exactly.

Mark: So understand that and be ready for that. And once they understand that and they appreciate that, they're not shocked when it happens.

Diane: Yeah.

Mark: "Okay, we... This might happen. We talked about this. Let's confront it. Let's deal with it. Let's work with the clinical team to overcome the problem and get moving forward."

Diane: So how does guardianship fit into the larger picture as we're talking about recovery, treatment planning, and long-term safety? You touched on that a little bit.

Mark: Okay. Maybe explain, be a little more specific about what you want me to, how you want me to address this

Diane: What does it look like?

Well, you were saying you're involved through the whole process. It's long-term. It can be a long-term and ongoing process for many years. And some I know personally, it's a lifetime.

Mark: Yeah. I would tell you, Diane, with the cases that we're involved in, it's probably a year-long journey.

Okay. I tell every family, "Expect this to be a year," right?

Diane: Okay.

Mark: Think of, you know, three to six months of some type of residential/partial hospitalization

Diane: Okay

Mark: followed by six months of what I refer to as a continuum of care.

Diane: Yeah.

Mark: Sober living, getting a sponsor, going to meetings, being med compliant, outpatient therapy, right?

Diane: Yeah.

Mark: We know from experience if you can keep somebody in recovery for a year, more likely than not, they stay in recovery for the rest of their life, as long as they do the things that are necessary. And I think statistically speaking, it's about 70% of people, right? There's a 70% chance that if you can do, if you can maintain recovery for a year, they stay in recovery.

I think the, the statistics that go out as far as five years say it's 83% chance. So the first year is the really the most important time. That's when the, that's when the real magic happens, right? And three to the first three to six months is critical. So as a general rule, even with a Marchman Act, we're probably on the case for about six months.

Most of our Marchman Acts go through at least one extension.

Diane: Yeah.

Mark: With guardianship, it's probably about a year.

Diane: Okay.

Mark: And sometimes over that year we are slowly giving rights back to this person, right? We're asking the court to restore capacity, give them the decision making authority back.

So it's, we're very rarely on a case for years and years. Are there times where

Diane: Okay

Mark: we're dealing with somebody that, you know, that maybe has a traumatic brain injury that's never going to fully recover? Yeah. Sometimes those are typically not the kinds of cases we get involved in, not 'cause I don't want them.

It's just that my world is behavioral health, not necessarily TBIs and things of a more permanent nature.

Diane: Okay.

Mark: But can somebody need a permanent guardianship? and I use the word permanent loosely because the statute refers to it as, as permanent, but that doesn't necessarily mean it's forever, right?

This is not

Diane: Gotcha

Mark: Britney Spears where we're 11 years down the road, right? Okay. Probably a year, right?

Diane: Okay.

Mark: So the statute calls it permanent, 'cause that's the legal term, but it doesn't mean we're in the case forever, and it doesn't mean you're the guardian forever.

Diane: Thank you for clarifying that.

Mark: Probably a year.

Diane: I appreciate that. Probably a year.

Mark: Yep, in the behavioral health space.

Diane: One of the things that I've always felt in my decades of nursing is the medical delivery system fails our, mental health and behavioral health and addiction clients. 30 days is not enough for anybody to recover.

I don't care. That's why we have so many failed, because they don't put them in a system for, you know, to get them back acclimated to the world without their, drugs or their alcohol or whatever. And it's really sad because they go back to the very same. In 30 days, their families or their friends and stuff are still there.

Over a year though, if you put them in, like you said, in, housing, and go through a whole system for a whole year, that makes sense to me. But, that's the way I feel every person that goes into recovery should have that kind of system, but it's not. It's 30 days and you're out, and that made no sense to me.

Mark: You're 100% right, Diane. I can't tell you how frustrating it is for us and also for families, right?

Diane: Yeah.

Mark: And sometimes I'll get that call, "I just wanna put him into treatment for 30 days." Then I'm probably not the right lawyer for you because I know what's going to happen, right? someone's been dealing with this for five years, 10 years.

How could you possibly give them 30 days of treatment and expect them to even have the skillset, to be able to maintain recovery? It just doesn't happen. And I tell families, "Look, I'm really sorry. I'd love to help you, but I'm not gonna take the case. I'm not gonna take your money or your energy or your time.

I know what's gonna happen. It's gonna be a disaster, and then" Wow two days, five days, a week after they leave treatment, there's gonna be some type of disaster or relapse, and I wanna get this right for you the first time.

Diane: Yes.

Mark: So your point is really well taken. Now, sometimes the issue is not that they don't want them in treatment for more than 30 days, it's that there's no resources for more than 30 days.

Insurance won't pay for it. They don't have the financial resources.

Diane: Yeah.

Mark: And I get that, and I think one of the, the, the real problems at the end of the day, Diane, is that we don't make quality treatment that's clinically appropriate for everybody, regardless of their socioeconomic status.

Diane: Yes.

Mark: And that is definitely, you know, the 800-pound gorilla in the room, and I'll be the first one to tell you that It's a problem, and I know there's been some talk about the federal government throwing money at the situation.

I'm always dubious when the federal government starts to throw money at any problem, because you know what happens, right?

Diane: I don't have confidence.

Mark: During COVID, how many people were b- going out and buying Lamborghinis, right?

Diane: Yes. Yeah.

Mark: You've seen what's happened in Minnesota and California

Diane: Yeah

Mark: and New York, and I don't want to get political.

Diane: All the fraud, yeah.

Mark: But any time a government throws money at a problem, there's going to be people out there who are nefarious in nature and who will use it as an opportunity to steal from people that really need the help.

Diane: Yes.

Mark, you know, one of the things our medical delivery system now has it's moving to a cost-sharing platform, even with Medicare, and what I'm seeing are more unsafe discharges to home than ever before because the reimbursement has become so low for so many things that facilities get a higher level of reimbursement, for not providing care.

I know that sounds crazy, but that's what's happening. and it's always been that way with behavioral health. There's no support. And I have a question for you. If a person is, an alcoholic or a drug addict, and, do they qualify for Medicaid, and does it, does that cover that type of platform?

Mark: Yeah. I'm not the expert on Medicaid. I don't

Diane: I'm not going to ask you to be, but I was just curious.

Mark: I think insurance in general, there, that and that's one of the questions, not just with Medicaid, but even with private insurance.

Diane: Yeah.

Mark: It depends, right? The lawyer's favorite answer, it depends.

Diane: Yeah.

Mark: You would need to find out from, the Medicaid provider or-

Diane: Yeah

Mark: or the private insurance company and say "Does this cover behavioral health? Does it cover mental illness? Does it cover substance use?" Yeah. Each policy is different, and sometimes when families are buying a policy, I know when I was applying, for insurance- One of the questions that they said, "Well, do you need coverage you know, for substance use?"

And I'm thinking, I don't even drink, so I probably don't need it," right? Oh. But a lot of families might say, I don't wanna spend the extra $100 a month because I don't think we'll ever need it."

Diane: Yeah.

Mark: So it depends, right? Does the policy cover it? You need to take a look at that. and I tell every family, if you've got insurance, whatever that might be

Diane: Yeah

Mark: is to call the provider and say, "Is this covered? And if it is, does it cover the facility that I wanna send my loved one to?"

Diane: Yes.

Mark: Is the insurance going to dictate where they go? And if so, are they gonna dictate how long they are at a specific level of care?

Diane: Yeah.

Mark: Because sometimes you have an insurance company that wants to make a clinical decision.

They did 21 days of residential, they're good to go. The facility's saying, "Hold on a second. We need them for 45 days before we can even consider stepping them down." So there's this sort of butting of heads, insurance companies making a clinical decision, which is probably going to be a disaster for the patient, because they're not in the appropriate level of care for a sufficient amount of time.

So again, I mean, it's a problem. it's definitely a problem. So

Diane: it's a problem in the medical side, let alone the mental health and behavioral health issue side right now. I took an insurance course to see what people are selling and what they're saying when they're selling insurance, and what I learned, and they tell you right in this course, which shocked me, that high deductibles and high co-pays are meant to deter the use of benefits.

Oh, that... then we only had the illusion of healthcare. I'm sorry. That's the way it is. We only have the illusion.

Mark: Yeah.

Diane: Sadly, that's where we are in our healthcare system. It's so broken. And it frustrates me. I wouldn't argue. Yeah. And Obamacare brought us to our knees. the private side used to hold us up, so that we could provide better care, but now, nobody wants...

The doctors don't wanna take Medicare Advantage, let alone a Medicaid case, and now they're rationing the care in Medicare, traditional Medicare. and the same with, Obamacare. They have the high deductibles and high co-pays that people aren't using the services. So it's very frustrating, and behavioral health and mental health have always been neglected.

Mark: Yeah, I think because you know, people didn't take it seriously as a disease

Diane: Yes. Yes

Mark: they didn't. And I get it. And look, you know listen, my brother's a doctor. I have four doctors on my, my wife's side of the family and two on my side. My brother, he's a hospitalist. He works at a hospital.

But he took out,3 or $400,000 in loans.

Diane: Yes.

Mark: So obviously, one of the reasons he became a hospitalist, because there's some loan forgiveness if you work, in that

Diane: Yes

Mark: a kind of a setting. But what about a doctor who wants to go into private practice? how, if he's not getting reimbursed by insurance, he can't pay his loans back.

Never mind put food on the table for his family.

Diane: Yeah.

Mark: So, you know, if insurance isn't going to pay, the doctors will say, "Well, I'm not taking that policy 'cause I can't put food on the table."

Diane: Exactly.

Mark: "Can't pay my loans back."

Diane: Yeah. doctors now make 20, doctors make less now than they did 20 years ago because of the reimbursement with, that they have gone through with managed care, Medicare and Medicaid.

And they have triple the amount of staff that to jump through all the hoops that they have to, the pre-op, the post, the length of stay. In fact, I did, care management, and my partner on the other side did the behavioral health, and so I know exactly every two or three days you're checking up, how are they doing, what's going on, can we get them out of there?

So I understand that, nobody, the criteria doesn't support anybody staying in, even if they they have to always be making some kind of progress. But you know, it, with mental health and, addiction, you can be doing well, but, you have, you're still fragile, and you need that support and guidance for some more time to deal with the issues, the root causes of what's causing you to do this, and to be able to, again, take responsibility for your own actions and your own health.

And that's, it takes a while for people to get there.

Mark: It does. It just does. Like any disease, it just takes time.

Diane: Absolutely, it does. So for families listening today, what is the first step they should take if they believe their loved one may need legal protection or guardianship?

Mark: Well, they're certainly welcome to call us.

I have four people in intake, and you can call and speak to them for free. They're not lawyers, so they won't give you legal advice, but they can almost certainly give you some options. So you can certainly call us and speak to us. if you go to the YouTube channel, I have about 1,200 videos. I put out three videos a day talking about these issues, and so I'm a big believer in giving families the information they need.

They shouldn't have to call me or certainly pay for a lawyer to get it, so you can do that. if they go to the website, our website, the mentalhealthaddictionlawfirm.com website, there's a... I've got two e-books on there. one of them is brand new. I wrote a book all about Florida's Marchman Act, and you can download that for free, and it's got written content and video content.

So I got a lot of resources. I can give you a lot of information for free. And you know, if you want to talk to one of the lawyers, we can schedule you for a consult too. So maybe the first port of call is, doing a little due diligence, doing a little research, and calling the team and having a conversation, and then figuring out, hey, is this an option we want to pursue?

And if it is, we'd love to help you.

Diane: And you're doing this nationwide.

Mark: Well, so I am barred in Florida and Massachusetts. So those are the two areas that we practice in. Most of our clients, Diane, are not in Florida, so their loved one's either here they're coming here or we're figuring out how to get them here.

Diane: Okay.

Mark: And again, Florida's just a great place to come for treatment. We have good treatment here, and we have this

Diane: I can attest to that.

Mark: Yeah.

Diane: You're right. Yeah.

Mark: And we do have these wonderful laws on the books that enables us to get control.

Diane: Yeah.

Mark: So we're bringing people here, and I tell families, "Look, bring them here for three to six months so that they're stabilized, and then they can go back to their home state," right?

And if they've done three to six months here, preferably six months, by the time they get back home, they're now, they're stabilized, and they can start to work that continuum of care, and they probably don't need that ultimate control. But, you know, a lot of states will, quote, domesticate. In other words, you can go to a court in another state and say, "Hey, I have a Florida guardianship.

I'd like the court to recognize it." We also have people coming into Florida, that have, say, I have one case where there was a Hawaii guardianship, and we domesticated it here in Florida. Sometimes it doesn't even need a hearing in front of the judge, so that if there was an issue while this person was here in Florida, we could run to the judge here in Florida as opposed to Hawaii.

So it's not unusual for us to be working with a law firm in another state. So there's a lot of ways to skin the proverbial cat, Diane, but it really starts with, okay, we're going to make the decision to address this issue because otherwise it's just going to continue, and we can't live like this anymore.

Diane: That's the first big step is making the decision to take action because, and lack of action, I've seen it so many times, it breaks my heart, results in death or incarceration.

Mark: Yeah.

Diane: And it's

Mark: You're 100% right

Diane: and it's not good at all. if you feel uncomfortable, well, just get over it.

Put your big pants on and big boy pants on and suck it up. Take that step to help your loved one. Because it can be life or death.

Mark: It can be, and we do experience that, and it's, you know that's a gut-wrenching phone call to have with a family.

Diane: Yes, it is.

Mark: And if you've, you know, if they felt guilty before about taking action, trust me, they feel a whole lot more guilty for their inaction.

Diane: Absolutely. Mark, thank you so much for your time and sharing this valuable information. I know personally that it, everybody out there should be calling you that needs this help or at least doing the research on your website because, it can save their loved one.

Mark: Yeah. Diane, thank you for having me, and thank you for the work that you do, 'cause you're

Diane: Thank you

Mark: a difference maker too.

Diane: Thank you so much.

Mark: It takes a village.

Diane: Yes, it does. To my family caregivers out there, you are the most important part of the caregiving equation. Without you, it all falls apart. So please learn to be gentle with yourself. Practice self-care every day because you are worth it.