Significant Updates In Florida Elder Law
by Shannon Miller, Esq.
It has come to my attention there are several important issues/law changes that many of you may not be aware of related to elder and special needs law and our expanding senior population of clients, no matter what area of law you practice in! I would like to detail some of these changes that may be of significance to you in your practices, as well as for you and possibly your aging parents. Our goal is to protect seniors.
Protect Seniors From Exploitation
The revamping of the criminal exploitation statute in 2015 has created new causes of action for both civil litigation and criminal prosecutions related to financial exploitation and elder abuse of our most vulnerable citizens. I encourage you to review §825.103, Fla. Stat. which has expanded the definition of exploitation extensively and includes five different definitions of exploitation. The criminal definition of exploitation is also used as the definition under the Civil Theft Statute §772.11. This statute provides for attorney’s fees and treble damages should certain criteria be met along with strict compliance with the required procedure. Civil theft has become a powerful tool when an exploited vulnerable adult requires immediate reimbursement of funds to avoid a calamity, and may resolve a matter quickly with limited litigation. The criminal statute provides additional tools for prosecutors to obtain convictions against predators who have otherwise been able to claim “it’s a civil matter” or “family matter” defense, or my favorite, “I am going to inherit the funds anyway…” defense. Reducing exploitation to protect seniors is a vital initiative.
The Designation of Healthcare Surrogate Statute §765.202
This statute changed this past legislative session to allow for individuals to designate healthcare decision makers even when the principal still has the ability to make informed consent for themselves. This becomes important when people are at the end of their lives and simply want to enjoy life rather than spending precious time and energy making complicated and stressful medical decisions. We often see clients who may suffer from a terminal condition like cancer or Parkinson’s prefer to have family or trusted friends make medical decisions on their behalf while they enjoy their final days without the stress of that decision making. This is a very important provision that I wish had been in place when my own mother was dying of pancreatic cancer and really just wanted to play Barbies with her granddaughters as opposed to deciding whether or not to stent her liver. We have downloadable current forms on our website related to this important change in the Designation of Healthcare Surrogate statute at MillerElderLawFirm.com. Feel free to download these forms along with the current version of our Living Wills which directs in advance how we wish to live the end of our lives. Establishing procedures for desired end of life is another way for us to protect seniors and give them quality of life.
Durable Powers of Attorney—The Super Powers and the Principal’s Initials
This provision has been effective since October, 2011 and requires that any power that would otherwise change someone’s estate plan, such as changes to bank account, pay on death designations, IRA beneficiary designations, authority to open or close certain bank or investment accounts, authority to transfer property and similar “super-powers”, are required to be separately initialed. I encourage you to review Florida Statute §709.02(07) to review this superpower provision. These are just a few of the changes that have occurred in the last few years related to Elder Law.
Exploitation Injunctions To Protect Seniors
We expect, during this upcoming legislative session, a new proposal related to temporary injunctions for asset freezing of vulnerable adult funds to provide a new tool for stopping the exploitation of seniors before life savings disappear. This new legislation will allow individuals and interested parties to file a motion for a temporary injunction with the court that would provide the same procedural protections and quick results that currently exist in domestic violence injunctions. This new legislation will create a way for people without the assistance of an attorney to freeze accounts for a short time until ownership can be determined. This new legislation may have profound benefits in preventing abuse by fiduciaries under powers of attorney, preventing undue influence and preventing predation of those with diminished capacity. We will continue to provide updates about new elder and disability legislation to protect seniors as it develops.
Protect Seniors Through NCFSAN
As a final bit of important elder law news, a new organization advocating for the rights of vulnerable adults to protect seniors has been formed in Hoggetown as a pilot program under the Department of Elder Affairs. This network includes stakeholders in the Gainesville area such as Elder Options, Seniors vs. Crimes, Adult Protective Services, GPD, ACSO, the University of Florida, the State Attorney’s Office of the 8th Jud. Circuit and Senior Healthcare. This new committee is called the North Central Florida Senior Advocacy Network and its primary purpose is to end exploitation through community collaboration. Stay tuned for additional information about this important organization.
Shannon Miller authored the article update for the Eighth Judicial Circuit Bar Association, Inc newsletter Forum 8 in the November 2017 issue. You may read the full newsletter here.
Shannon Miller is the only board certified Elder Law attorney in the Eighth Judicial Circuit.