Financial Exploitation of the elderly in Florida is a crime, and is subject to legal action for damages - consult with an experienced elder law attorney

Prevent Financial Exploitation of the Elderly Vulnerable Adult!

How to prevent financial abuse of the elderly, under Florida law, as explained by C. Randolph Coleman of the Coleman Law Firm, an experienced elder law attorney
The statistics are frightening!

Sometimes called the “crime of the twenty-first century,” financial exploitation of the elderly is becoming rampant. Statistics show that one in every twenty seniors has been the victim of financial abuse of the elderly, according to the National Adult Protective Services Association (“NAPSA).

Most of the abusers are family members, or close friends, and almost always are at least acquaintances. Financial abuse can range from telemarketing scams, soliciting for fake charities, identity theft, or just plain take Mom to the bank and withdraw her money. Women are more likely to be victims of elder abuse, and most victims of financial exploitation of the elderly are between 80 and 89 years old. But, men and women of all races, economic status, and health levels are subject to exploitation.

Signs of Financial Exploitation of the Elderly

There are a number of signs of financial exploitation. These include:

  • Unexpected changes in bank account balances or banking practices
  • Allowing a new friend or trusted acquaintance to make decisions on the elderly person’s behalf
  • Unauthorized or unexplained financial account withdrawals
  • Disappearance of funds or valuable possessions
  • Unanticipated transfer of assets to a family member or friend
  • Sudden changes to a will or other important financial documents

If you recognize warning signs or suspect someone you know is being exploited, addressing the issue immediately, whether that means getting the proper authorities involved, or confronting the abuser directly, is often the best way to prevent additional abuse. And, in Florida, there is an effective tool that can be used proactively to stop financial exploitation of the elderly.

Florida Provides Protection for Vulnerable Adults

In Florida, there now is a way to prevent financial exploitation of the elderly. No other state in the United States has a similar statute in place. There is no filing fee necessary, and, though a lawyer may be of great assistance, there is no requirement that the vulnerable adult be represented by a lawyer. There is a form petition for the temporary injunction that can be obtained from the court clerk’s office.The clerks of the various circuit courts throughout Florida are required to assist the vulnerable adult with this process if he or she is not represented by counsel.

Protection for Vulnerable Adults

The 2018 Florida legislature passed legislation that allows a court to issue an injunction for the protection from exploitation of “vulnerable adults.” Fla. Stat., §825.1035. A “vulnerable adult” is defined in Fla. Stat., §415.l02(28), as:

  • 18 years old or older
  • Impaired ability to
    • Provide for their own care or protection
  • Impairment is due to any of the following: disability (mental, emotional, sensory, long-term physical or developmental, brain damage, or infirmities of aging.

The definition does not require a determination that the vulnerable adult is incapacitated.

Temporary Injunction, Without Notice to the Abuser

The statute allows the court to enter a temporary injunction to prohibit financial exploitation of the elderly vulnerable adult that will last for 15 days, without providing the person engaged in the exploitation with advance notice. Obviously, if the exploiter was given notice, then he or she might take additional assets and disappear.

The court can prohibit contact by the offending party with the vulnerable adult, including awarding the vulnerable adult the sole possession of a dwelling unit the exploiter is occupying. The court can freeze assets or credit lines of the vulnerable adult, whether it is the vulnerable adult’s account or a joint account between the vulnerable adult and the person engaged in the exploitation. The court can also, in the temporary injunction, require that the vulnerable adult’s support and maintenance be provided from the frozen bank account. Finally, the court can provide appropriate directives to law enforcement officers to provide additional protection for the vulnerable adult if appropriate.

After an evidentiary hearing before the court, the court can continue the temporary injunction to prevent the ongoing financial exploitation of the elderly, in whole or in part, can restrain the person exploiting the vulnerable adult from contact or further financial exploitation of the elderly, can award the vulnerable adult the exclusive use and possession of the home (after confirming the availability of alternate caregivers, if needed). The court can order the exploiting person to participate in a treatment or rehabilitation program; and can direct that assets be returned to the vulnerable adult or remain frozen until ownership can be determined.

Penalties for the Abuser

Finally, the court can order the exploiting party to return assets, pay all of the costs involved in the proceeding, and order any other actions necessary to protect the vulnerable adult from further exploitation.

The petition for the temporary injunction can be filed by the vulnerable adult, the vulnerable adult’s guardian, a person or organization acting on behalf of the vulnerable adult with the consent of the vulnerable adult, or the vulnerable adult’s guardian, or, a person who also files for an appointment of emergency temporary guardian of the vulnerable adult.

The statute also provides a private cause of action for the vulnerable adult to pursue a recovery of any damages that result from the abuser’s exploitation. The vulnerable adult can recover punitive damages from the abuser, as well as attorney’s fees incurred in the lawsuit. 

The financial exploitation of the elderly in an amount of property or money greater than $50,000 is a first degree felony, punishable by up to 15 years in prison, according to Fla. Stat. 825.103 (3)(a): “If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $50,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

Financial Exploitation of the Elderly

The temporary injunction statute allows the court to enter an injunction to protect the vulnerable adult from “exploitation.”  Financial exploitation of the elderly is defined in Fla. Stat., §825.103(1) as:

  • Depriving the vulnerable adult of their funds or property – (that means stealing the funds or property – there is no requirement for diminished capacity).
    • Using or trying to use a vulnerable adults funds, or property, with the intent to deprive the vulnerable adult of the use of the funds, or for the benefit of someone other than the vulnerable adult;
    • By someone who either:
      • Has a business relationship with the vulnerable adult, or
      • A person who knew or should know that the vulnerable adult lacks capacity to consent.
  • Depriving the vulnerable adult with diminished capacity of money or property:
    • By a person who knew or should know that the vulnerable adult lacks capacity to consent.
  • Breach of a fiduciary duty to the vulnerable adult (“fiduciary” includes an agent under a durable power of attorney, a trustee of a trust for the benefit of the vulnerable adult, or a court appointed guardian. A breach of a fiduciary duty does not require that the vulnerable adult has diminished capacity.
    • Unauthorized appropriation, sale or transfer of the vulnerable adult’s property (where the vulnerable adult does not receive reasonable value for the property), or
    • The fiduciary violates the following duties:
      • Fraud in the appointment to the fiduciary duty;
      • Abuse of powers granted to the fiduciary;
      • Wasting, embezzling or intentionally mismanaging assets;
      • And if it is an agent pursuant to a durable power of attorney, acting contrary to the principal’s sole benefit or best interest.
  • Misuse of a Bank account.
    • Financial exploitation of the elderly includes misappropriation, misuse or transfer without authorization of funds belonging to the vulnerable adult, if the vulnerable adult was the sole contributor or payee of the funds;
    • Applies to:
      • Personal accounts;
      • Joint accounts created with the intent that the vulnerable adult has all rights to the money deposited into the account;
      • Convenience accounts.
  • Failure to Provide Necessities
    • Intentional or negligent failure to effectively use the vulnerable adult’s income and assets for necessities of support and maintenance;
    • By a:
      • Caregiver, or
      • Person who stands in a position of trust and confidence.

This statute, which became effective July 1, 2018, creates a quick and inexpensive method for vulnerable adults, or their helpers, to protect against financial exploitation of the elderly adult’s assets. This process for a temporary injunction provides a tool to stop exploitation and undue influence of seniors.

If your family member is a victim of financial exploitation, we can help guide you in the process to obtain the temporary injunction and protection needed for your loved one. Please call us if you have a family member who has been financially exploited, and we can help you determine the most appropriate course of action.