What Is Considered Exploitation Of The Elderly Under Florida Law?

Florida has comprehensive laws designed to protect the elderly and disabled from physical, psychological, and even fiscal harm. For example, Section 825.103 of the Florida Statutes addresses “exploitation of an elderly person or disabled adult.” An elderly person is defined here as a person who is at least 60 or is otherwise suffering from the “infirmities of aging.” A disabled adult can be anyone over the age of 18 who “suffers from a condition of physical or mental incapacitation” that restricts their “ability to perform the normal activities of daily living.”

Exploitation is basically any act that involves “knowingly obtaining or using” an elderly or disabled adult’s assets (or attempting to do so) with the intent to deprive that person of the benefits of their property. This includes situations where:

• The exploiter abuses a position of “trust and confidence” with the elderly person or disabled adult;
• The exploiter has a “business relationship” with the elderly person or disabled adult; or
• The exploiter breaches a fiduciary duty to the elderly person or disabled adult.

This last category covers situations like a person appointed to serve as guardian or trustee. For example, if an elderly person signs a revocable trust and names someone else to serve as trustee, that trustee can violate Section 825.103 if they waste, embezzle, or otherwise intentionally mismanage the trust’s funds. Similarly, if a person uses fraud to obtain appointment as an elderly person’s guardian–so that they can obtain control of their assets–that also runs afoul of the law.

Keep in mind, Section 825.103 is a criminal statute. So a person who is caught exploiting an elderly or disabled person is not just facing civil remedies. They can be sent to jail if convicted in a criminal trial.

At the same time, proving a criminal offense means presenting evidence that shows–beyond a reasonable doubt–that the defendant used improper means to obtain control over an elderly person’s assets. This is often easier said than done. For example, in a 2005 Florida case, Bernau v. State, the Second District Court of Appeals threw out a Section 825.103 conviction involving a defendant accused of bilking his parents out of $847,000

Prosecutors alleged the defendant’s parents had sold their home for that amount of money. But the check was then endorsed over to the defendant, who deposited the funds into his personal account and spent most of the money on himself. Prosecutors argued this was criminal exploitation of the elderly.

But the Second District was troubled by the prosecution’s failure to explain how the defendant acted illegally in obtaining the money in the first place. For instance, the state “did not present any witnesses to the transaction in which the [parents] endorsed the check over to [the defendant].” Put another way, there was no evidence that the defendant “lied to his parents or intimidated them in order to obtain the funds.”

It is possible under Florida law to commit exploitation by obtaining an elderly person’s assets “at a time when they know or reasonably should know that the elderly person lacks the capacity to consent.” In this case, however, the prosecutors argued a different part of the statute, which required proof of “deception or intimidation.” Absent such proof, the defendant’s conviction could not stand, even if his actions appeared suspicious.

Speak with a Florida Undue Influence Lawyer Today

Exploitation of the elderly is a serious problem in Florida. And it is often the source of many undue influence claims. If you are involved in such a dispute and need advice from an experienced Pompano Beach estate and trust litigation attorney, contact attorney Mark R. Manceri today to schedule a consultation.

Sources:

flsenate.gov/Laws/Statutes/2020/Chapter825/All

scholar.google.com/scholar_case?case=8042153954497351205