During the course of handling probate administrations, estate planning and contested adversarial probate cases throughout Florida, one dark and recurring theme has continued to arise. Claims of exploitation and elderly abuse are rampant in our nation, and especially so in Florida. The prominence of elder abuse in Florida may be in part due to the unique demographics of our state but sadly it is also in part caused by either indifference or willful ignorance of the problem. This article is meant to provide a brief overview of the available tools in Florida to prevent elder exploitation and if you are unfortunate enough to be dealing with recovering from such abuse, a basic road map of some of your available remedies under current Florida law.
BE PROACTIVE TO PREVENT ELDER ABUSE IN FLORIDA
Elder abuse has many forms and faces but ultimately can be reduced to the same basic conduct: An unauthorized taking or misuse of assets on the basis of some exploitation of a vulnerable adult. In order to prevent such abuse of a loved one or family member it is critical that you maintain communication and if possible oversight over certain critical affairs. Some of the common scenarios should raise alarm bells:
- A distant relative comes to live with an elderly person after years of no communication and takes control of activities of daily living. Limits the elder’s communication with the outside world and agrees to help “manage” his or her financial affairs.
- A caregiver starts part-time, then seeks to cohabitate with the elder person, and limits communication with family members. The caregiver obtains a power of attorney and changes are made to estate planning materials.
- A financial adviser/accountant/insurance broker or other fiduciary managing the account(s) engages in over-trading or stirring the account(s) just to generate excessive administrative fees and charges without any real financial strategy.
- Drastic changes to beneficiary designations on accounts or estate planning documents providing a substantial benefit to a newcomer in the life of an elderly adult.
The sad reality of aging in America that is often ignored is that most often with aging, before we die, we may lose significant mental capacity. This dementia has some early warning signs that should not be ignored:
- Memory issues
- Increased confusion
- Personality or behavior changes
- Reduced concentration
- Apathy and/or withdrawal or depression
- An inability to complete everyday tasks.
Being on the lookout for these often-inevitable changes can help you and your family cope with the challenges that come with growing older. The absolute best tool for proactively protecting a loved one from future elder abuse is to create and execute a Power of Attorney. A Florida Power of Attorney document enables an elderly person (the “Principal”) to designate a trusted person (the “Agent”) to act on behalf of that person for their benefit and in their aid. The Power of Attorney typically includes broad powers to take financial actions and manage medical decisions to continue the affairs of an elder after he or she becomes incapacitated. The Florida Bar has an excellent basic primer on Power of Attorney documents which you can access by clicking here.
REMEDIES TO RECOVERY FROM ELDER ABUSE UNDER FLORIDA LAW
Florida has several tools available to family members who believe that a loved one has experienced exploitation or elder abuse. We have several articles about Probate Litigation regarding abuses of power in changing estate planning documents and conversion of assets on this site. If the individual in question has died, a probate proceeding will likely need to be opened before the proper tools for redress can become available. If that scenario has occurred, give us a call to discuss your options in detail.
Generally, Chapter 415 of Florida Statutes, the “Adult Protective Services Act” provides several important tools. Depending on the nature of the situation the wrongdoer can also be investigated by the police as elder exploitation can be a criminal offense in certain circumstances. If you suspect such abuse Chapter 415 has also paved the way for an Elder Abuse Hotline. Florida has a department of Elder Affairs and you should report any suspected abuse to (1-800-962-2873) immediately.
Also, from a civil liability standpoint, the wrongdoer can be sued in civil court to obtain monetary recovery and even punitive damages. Florida Statute 415.1111 provides in part:
A vulnerable adult who has been abused, neglected, or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation. The action may be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. The action may be brought in any court of competent jurisdiction to enforce such action and to recover actual and punitive damages for any deprivation of or infringement on the rights of a vulnerable adult. A party who prevails in any such action may be entitled to recover reasonable attorney’s fees, costs of the action, and damages. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a vulnerable adult.
If you suspect elder abuse or even the possibility of such exploitation in the future, don’t wait. We have seen many many different types of inheritance hijacking and elder abuse in our State. If you haven’t already, make sure that your loved ones have the safeguards outlined above to prevent them from abuse should they become afflicted with dementia. Alternatively, if you believe that your loved one has already been exploited Florida has several legal mechanisms available to obtain civil and even criminal redress. Give us a call for a free consultation if you have any questions or issues with elder abuse in the State of Florida, we are here to help.