It is widely understood that due to Florida’s large percentage of elderly residents, exploitation of the elderly is a serious statewide problem. Accordingly, Florida law provides protections for the elderly against such abuse for financial exploitation of vulnerable adults (both in its criminal statutes and civil statutes). The “Adult Protective Services Act” (Florida Statutes §415) was established provide for the detection and correction of abuse, neglect and exploitation through social services and criminal investigations.
Florida Statute 415.102 (28) defines “Vulnerable adult” as: “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”
Importantly, the legal standard for being vulnerable is NOT the same legal capacity or competency. As such, there is no required court determination of incapacity to be classified a vulnerable adult, such as in a guardianship proceeding. A loved one can be considered a vulnerable adult and still have legal capacity.
Further, the act of “exploitation” includes: breaches of fiduciary relationship, the misuse of a power of attorney or the guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property; unauthorized taking of personal assets and even intentional or negligent failure to effectively use a vulnerable adult's income and assets for the necessities required for that person's support and maintenance. (F.S. §415.102(8)(b)).
Obviously, family members and close relations are the most likely individuals to perpetrate elder exploitation, but people outside of family relations can commit financial exploitation of the elderly such as a broker or financial advisor of other fiduciary positions.
A vulnerable adult who has been abused, neglected, or exploited has a legal cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation. (F.S §415.1111). The civil court legal action for damages can be brought by the vulnerable adult, that person’s guardian or by a person acting on the behalf of the vulnerable adult.
The elements necessary to establish that an elder or disabled person has been subject to exploitation are:
- the victim was a vulnerable adult (as defined above);
- the defendant wrongfully appropriated the victim's property; and
- the defendant knew, or should have known of the wrongful nature of its conduct.
The Florida Elder Exploitation Injunction
If your elder is being exploited, besides both criminal and civil causes of action, you may want to file an elder exploitation injunction to help. This injunction will keep the exploiter away from the vulnerable adult and can also freeze the vulnerable adult's assets, among other things, to prevent further exploitation.
We Can Help
If you suspect that a loved one has been the victim of elder exploitation call us to help. We have specifically set up our elder law department to handle not just Medicaid and estate planning issues, but to also help with litigation matters to help our elderly clients. You may need to seek help from a Florida guardianship attorney to help in this difficult time.