Elder exploitation is a very large issue that many seniors face, especially in Florida. It is estimated that 1 in 10 seniors will experience elder abuse in their lifetime and only about 7 percent of elder abuse gets reported to authorities. Two-thirds of elder abuse cases involve family members. As we age, we are likely to develop some form of dementia or cognitive decline, and there are plenty of people who are willing to exploit our senior population. Luckily, our legislature has been working to combat these crimes and help victims of exploitation. One of the most powerful tools now available to help is the injunction for protection against exploitation of a vulnerable adult under Florida Statutes Sec. 825.1035.
What is an exploitation injunction?
This is an emergency type order court order to keep an exploiter, or potential exploiter, away from a vulnerable adult. For purposes of the statute, a vulnerable adult is a person eighteen (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. While any adult can be exploited, we generally think of this occuring more frequently in the elder community due to the increasing likelihood of dementia as we age. It is estimated that 50% of those over age eighty (80) will develop dementia before death.
Why was the injuction created?
When someone is being exploited, it can be very difficult for outsiders (family, friends, attorneys, police, etc.) to protect their loved ones when they are being exploited - and sometimes the exploiter is living with the vulnerable person and may even be related to them. Sometimes the elder does not recognize that they are being exploited and they allow exploiters to just be a part of their lives. When this happens, there were few good legal remedies to keep an exploiter away from the exploited individual. Elder exploitation is a crime in Florida, but that does not stop people from trying.
When would you use one?
Here is a typical example of when an elder exploitation injunction would be useful:
Mom, age 88, lives at home alone. Mom is fairly competent but slowing down physically and mentally. Mom's neighbor starts showing up at her home and befriends her. The neighbor starts getting involved in Mom's life, starts helping her pay her bills and also starts requesting loans and gifts of Mom's money. Mom is competent but she still allows the exploiter to come around.
In this situation, Mom's family may not have power of attorney, for instance, and people may not be aware of all that the exploiter has done. Further, the family may think that the exploiter is going to take even more money - such as the exploiter trying to become power of attorney themselves, for instance. All of this is can be chaotic and this cause of action is designed for the court to act quickly to stop things from getting worse.
Here is another example of when an elder exploitation injunction would be useful:
Dad, age 80, is single and living alone. He meets a woman in her 50's in the grocery store parking lot. They quickly develop a relationship and she moves in with him. Dad's children live out of town and they are not aware that all of this is happening. Dad even names his "girlfriend" as his power of attorney. His "girlfriend" uses the power of attorney to start making "loans" to her and her son, buying them both cars and making lots of gifts.
In this situation, an elder injunction could provide an emergency court order that keeps his girlfriend, and her son, away from Dad while the authorities investigate how much money was taken, and even if criminal charges should be made.
How we used an elder injunction in our own practice
I was power of attorney for a very nice person who lived close to our law firm. My client was doing fairly well mentally but he required some household help, driving, etc. My client's neighbor had a son that kept on coming by and helping my client. My client started writing him checks for help around the home - lots of checks - and made him some loans as well. Over time, my client seemed to forget how many checks he was paying his "helper." As my client was competent to make her own financial decisions, we did not need to seek a guardianship over his assets. But we needed to keep the "helper" away from my client to allow us to do a proper investigation of his assets and how much he had taken. My client was shocked when all of the evidence came to light, but getting the injunction allowed us, and the police, to feel certain that my client's exploiter would not try to get him to not press charges against him, or even ask for more money, ever again.
Who can file an elder injunction?
The injunction can be filed by:
- the vulnerable adult in imminent danger of being exploited;
- the guardian of a vulnerable adult in imminent danger of being exploited;
- a person or organization acting on behalf of the vulnerable adult with the consent of the vulnerable adult or his or her guardian; or
- a person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian with respect to the vulnerable adult.
When this statute came out in 2018, we immediately amended our durable power of attorney in order to specifically allow the elder's attorney-in-fact to file the injunction as his or her legal representative.
How does the injunction work?
A petition is filed with the court where the vulnerable adult lives by one of the above people. A hearing is set with a judge who ways the facts without notice to the alleged exploiter. If the court finds that:
- An immediate and present danger of exploitation of the vulnerable adult exists.
- There is a likelihood of irreparable harm and nonavailability of an adequate remedy at law.
- There is a substantial likelihood of success on the merits.
- The threatened injury to the vulnerable adult outweighs possible harm to the respondent.
- Granting a temporary injunction will not disserve the public interest.
- Such injunction provides for the vulnerable adult’s physical or financial safety.
The court may issue an order that does the following:
- freezes the elder's assets
- freezes lines of credit
- keeps the exploiter out of the vulnerable adult's home
- prohibits the exploiter from contacting the vulnerable adult
- and much, much more
After an initial hearing, the injunction can be made permanent by the court with notice to the exploiter.
What are ways other ways to protect an elder from exploitation?
Exploitation can be difficult to predict and difficult to stop, but the best ways to prevent exploitation are by creating a good estate plan, such as creating a revocable living trust and durable power of attorney. Of course, if the durable power of attorney is exploiting you, that is very problematic, so you must name people you trust in these roles. We have more tips on how your estate plan can prevent exploitation here. If the situation is bad enough, such as when the exploited person is incompetent, or of the person's legal representative is doing the exploiting, it is more likely that in addition to the exploitation injunction, that an emergency temporary guardianship also be sought.
When would a guardianship be necessary?
The exploitation statute is written in a few ways, but one reason is that the guardianship process can be pretty slow. If someone is being exploited, it can take a few months to truly stop the exploitation and take control of the vulnerable adult's assets. So it is possible that an injuction could or would be filed at the same time a guardianship is started as well.
We Can Help!
Our elder law department has a guardianship and elder litigation component. We are proud advocates for the elderly and their families in difficult times.