The exploitation of the elderly in Florida is a continuing problem and adult protective service agencies agree that these sorts of problems are on the rise. It is becoming an increasing problem in Florida (which has the greatest proportion of seniors who are age 65 and over). As an elder law attorney, I see situations every day where seniors are being exploited or being taken advantage of. This can be done by an outsider (such as a caregiver or someone who comes into the home to fix something) or by family members who take financial advantage of the senior.
Exploitation can also be accomplished by the exploiter taking the senior to a lawyer to procure legal documents, such as a durable power of attorney which would give the exploiter the ability to access the senior’s financial accounts or change beneficiaries. Other types of documents that an exploiter might try to have the senior sign include changes to their Will or Trust, deeds to real estate and changing the names on bank accounts or beneficiary designations.
Senior citizens may suffer from physical or mental impairments that diminish their capacity to make legal decisions or make them vulnerable to needing the help of another person. If you suspect that someone is being exploited, you can call the Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873).
Due to its increasing senior population and the corresponding exploitation that occurs, Florida is leading the way in crafting laws that go after those who would exploit. Effective October 1, 2014, the legislature actually revised Florida Statute, Section 825.103 which will be used to help prosecute those who would exploit disabled individuals and elderly persons. The change in the statute resulted due to an inability of prosecutors to prove that financial transfers were exploitation rather than legitimate transactions. This is due to the fact that the statute previously required the showing of “deception or intimidation” when trying to prove exploitation. The statute revised the definition of “exploitation of an elderly person or disabled adult” and removed the requirement to prove “deception or intimidation” so that to prove exploitation requires showing that someone “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…(them)…of the use, benefit, or possession of the funds, assets or property, or to benefit someone other than the elderly person or adult….”
The statute also expands the definition of who is considered to have exploited a disabled adult or elderly person to include individuals who act as a trustee, as well as guardians and agents under a power of attorney. If these individuals take assets of a disabled adult or elderly person, and the person did not recive the “reasonably equivalent financial value in goods and services, a trustee, guardian or agent under a power of attorney can be prosecuted. Additionally, the statute creates new sections dealing with exploiting an elderly person’s funds where the funds (personal accounts, joint accounts or convenience accounts) belonged to the elderly person but the exploiter transferred the money or used the money for themselves, not using the elderly person’s income and assets to take care of the elderly person (in a caregiver situation), and creating a permissive presumption of elder exploitation when a non-relative transfers money or property from an elderly person to themselves of over $10,000 and knew the elderly person for less than 2 years.
Finally, the statute increases the felony offenses against someone convicted of exploitation – taking $50,000 or more from an elderly person or disabled adult is a 1st degree felony offense, taking $10,000 to $50,000 is a 2nd degree felony offense, and taking up to $10,000 is a 3rd degree felony offense. The amount of money taken from the elderly person or disabled adult has been decreased with the penalty for the amount stolen being increased.
While this is a step in the right direction, statistics show that it is most likely family members will steal from their elderly or disabled family, rather than caregivers or strangers. However, as Representative Passidomo (who sponsored the Bill that later became the statute) pointed out, we have to start somewhere in trying to end the exploitation of our elderly and disabled population.
If you have questions about exploitation issues regarding your loved one, we are here to help. Laurie Ohall is a Florida Board Certified Elder Law Attorney based in Brandon, Florida. Contact Ms. Ohall today if you need estate planning, elder law, probate or guardianship assistance.