Elder Exploitation and Estate Planning in Florida

It is widely understood that areas with a larger percentage of senior citizens will have a larger likelihood for incidents of elder abuse to occur. Florida stands as a retirement beacon for the rest of the U.S. and, indeed, to the rest of the world. Because Florida has such a large percentage of elderly residents, the exploitation of elderly adults has become a serious issue.

The Florida legislature has proactively created protections for the elderly to safeguard against abuses that can occur, such as financial exploitation. When estate planning, there are several ways that an experienced wills and estates attorney can help you implement safeguards meant to help protect individuals and their estate from falling victim to various forms of elder exploitation.

Florida law, itself, has also developed to help elderly individuals to guard against exploitation: the “Adult Protective Services Act” was established to detect and correct instances of abuse, neglect, or exploitation through both civil and criminal avenues.

A “Vulnerable Adult”

Elder exploitation involves the abuse or exploitation of an elderly, vulnerable adult. Florida Statute 415.102 (28) includes in its definition of a “vulnerable adult” a “a person… 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….the infirmities of aging.”

Importantly, the legal standard for being vulnerable is NOT the same standard as to determine a person’s competency. There is no requirement for an adult to be deemed “incompetent” by the court in order for them to benefit from holding a vulnerable person status.

Florida law further provides that an act of elder “exploitation” includes: breaches of fiduciary relationship, the misuse of a guardianship, or the misuse or abuse of a power of attorney, resulting in the unauthorized appropriation, transfer, or sale of property. It also includes instances such as the intentional – or even negligent – failure to effectively use a vulnerable adult’s income and assets to obtain the necessities that the vulnerable person needs for their support and maintenance.

Who is Most Likely to Commit Elder Exploitation?

Like any situation, elder exploitation will occur in places where there is an opportunity for the abuse to happen. Family members and very close friends are the most likely to have access to a vulnerable adult and easy access to their assets. However, anyone with access to the vulnerable adult can commit financial exploitation. You should carefully vet those persons who you trust as financial advisors, and those who hold a power of attorney for you.

It is also quite common for a vulnerable adult’s caregivers to be the perpetrators of abuse, neglect, and/or exploitation.

Legal Remedies

A vulnerable adult who has been abused, neglected, or exploited could potentially have many different avenues for bringing causes of action against the perpetrator. The vulnerable adult who has been victimized may recover actual damages AND punitive damages in response to abuse, neglect, and/or exploitation. (F.S §415.1111).

Often, careful estate planning and utilization of estate planning tools can help to create safeguards and boundaries to protect elderly individuals and their estates. A wills & probate attorney at Suncoast Civil Law can help.

Who Can Bring a Law Suit?

A civil suit pursuing damages can be brought by the vulnerable adult themselves, that person’s guardian, or a person acting on the vulnerable adult’s behalf.

Elements of Exploitation

To establish that an elderly person has been subjected to exploitation, the person bringing the suit must establish that:

• 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, the wrongful nature of their actions.

Contact Suncoast Civil Law

The experienced Sarasota wills & probate attorneys at Suncoast civil law can help you to make an estate plan that guards against exploitation. Contact our office today to begin working with our team.

Sources:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0415/0415.html

clickorlando.com/news/local/2024/03/28/orlando-commissioner-regina-hill-arrested-after-elderly-exploitation-fraud-investigation/