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EXPLOITATION IN FLORIDA

*Consultations relating to Exploitation require a fee.

Since October 2014, Florida’s exploitation statute is the most progressive statute in the United States.  The definition of exploitation has changed for the criminal prosecutions and civil litigation, making it much easier to pursue predators who take advantage of our most vulnerable citizens.  Prosecutors can now charge and convict exploiters.  Civil attorneys also have new tools to recover stolen assets.  Vulnerable adults finally have laws that truly protect them.

Everyone needs to be aware of these new law changes, and be more active in reporting cases of abuse and exploitation.  Trustees, guardians, joint account holders, and agents under a Durable Power of Attorney can all be subjected to serious criminal and civil penalties if they use someone else’s money improperly, or even if they are just negligent.

Pursuant to Florida Statutes §825.103, Exploitation means:

Knowingly obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:

1. Stands in a position of trust and confidence with the elderly person or disabled adult; or

2. Has a business relationship with the elderly person or disabled adult;

 

It is a breach of a fiduciary duty by guardians, trustees, agents under a durable power of attorney for actions which result in an unauthorized transfer without value

OR

For agents appointed under Chapter 709:

  1. Committing fraud in obtaining their appointments
  2. Abusing their powers
  3. Wasting, embezzling, or intentionally mismanaging the assets of the principal or beneficiary
  4. ACTING CONTRARY TO THE PRINCIPAL’S SOLE BENEFIT OR BEST INTEREST

 

WHO IS AT RISK FOR FINANCIAL EXPLOITATION?

ANYONE can be a victim of financial exploitation.

Older individuals can be more vulnerable to financial exploitation for a number of reasons.  Seniors are more likely to have disabilities that make them dependent on others for help.

The Facts of Elder Abuse:

  1. Of those over 65, one in five have been scammed or exploited. Half of those interviewed demonstrated signs of vulnerability.
  1. At least $3 billion dollars a year is lost to financial exploitation.
  1. Financial acuity increases with experience until the age of 53.3. After that age, our financial abilities begin to decline and continue to decline as we age.
  1. More than 1/3 of Americans over the age of 71 have some mild cognitive impairment.
  1. According to a Metlife market survey of reported swindles, 51% of scammers were strangers. 34$ were family, friends, and neighbors.
  1. 2/3 of elder abuse victims are women. African-American, Latino, poor and isolated adults are disproportionately victims of elder abuse.
  1. For every one case that is reported, 23 are unreported.
  1. Those with cognitive deficits suffer 100% greater economic losses than those without deficits.

 

Older individuals may:

  • Have significant income and accumulated assets
  • Be trusting and polite
  • Have predictable patterns that can be easily tracked and exploited
  • Be lonely and socially isolated
  • Be vulnerable due to grief from the loss of a loved one or friend
  • Be suffering from diminished capacity or physical disabilities
  • Be unfamiliar with managing financial matters
  • Be unprepared for retirement and the potential loss of financial decision-making capacity
  • Fail to pursue legal action as result of illness or embarrassment

 

WHO ARE THE PERPRATORS?

Anyone can be a perpetrator.  Perpetrators of financial exploitation can be a close family member or friend or even an unknown person.

  • Family members, including spouses, children, nieces, nephews, and siblings.
    • Some members may have substance abuse problems
    • They may feel they stand to inherit and feel justified in taking what they believe is “almost” or “rightfully” theirs.
    • They may feel a sense of entitlement
    • Have negative feelings towards the victim or other family members whom they want to prevent from acquiring or inheriting the older person’s assets
  • Predatory individuals who seek out vulnerable seniors with the intent of exploiting them.
    • Such individuals may profess fondness for the older person (“sweetheart scams” and “twisted heart” cases)
    • Seek employment as personal caretakers, counselors, etc, to gain the older person’s confidence.
    • Move from community to community to avoid being apprehended.
  • Individuals who are in fiduciary positions with the elderly person.
    • They may use their positions of trust or respect to gain confidence
    • Use deceptive or unfair business practices
    • Overcharge for services or products
  • Other individuals including:
    • Acquaintances
    • Neighbors
    • Home repair contractors
    • Medicare scam operators
    • Internet scammers
    • Telephone and mail scammers
    • Other persons known or unknown to the older adult

 

WHAT ARE THE INDICATORS THAT ABUSE HAS OCCURED?

Some of the indicators listed below can be explained by other causes or factors and no single indicator can be taken as conclusive proof. Rather, one should look for patterns or suspicious conduct that suggest an older person may be exploited.

Indicators include:

  • New “best friends”
  • Unpaid bills
  • Withdrawals or transfers between accounts that the older person cannot explain
  • A caretaker is expressing excessive interest in the amount of money being spent on the older person
  • Suspicious signatures on checks or other documents
  • The older person is uncertain about their financial arrangements
  • The absence of documentation about financial arrangements
  • Belongings or property are missing
  • The elder person becomes isolated
  • The exploiter insists on being present for visits and phone calls

 

WHAT CIVIL REMEDEIES ARE AVAILABLE?

Civil Theft

The Civil Theft statute just got a whole lot easier to prove because it relies on the criminal definition of exploitation.

Florida Statute 772.11, appropriately titled “civil remedy for theft or exploitation,” provides that:

Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of §825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.

Civil Exploitation

Guardianship

 

WHAT TO DO IF YOU SUSPECT SOMEONE OF BEING EXPLOITED?

Contact the Elder Abuse Hotline at 1-800-962-2873, or contact the police.  If you believe the person is in danger or you believe a serious crime has been committed, call 911 for immediate help.

If the loss involves funds held in a financial institution, such as a bank or credit union, report the problem to the institution immediately.

If your or someone you care about may be suffering from Elder Abuse or exploitation, we can help.  Call our Gainesville, Florida office at 352-379-1900 or contact us online here.