The courts have a new tool to protect financial exploitation of elderly persons and disabled adults. Effective July 2021, an amendment to Chapter 825 creates a civil cause of action for an injunction for protection against exploitation of a “vulnerable person.” Prior to 1973, Florida law did not distinguish between the terms “competent” and “diminished capacity.” Undue influence was difficult to prove when a person had not been adjudicated incompetent. One could not be both. A competent person was not protected from their own error.

In 1973 Chapter 415, Adult Protective Services Act, created a program of protective services for “vulnerable adults.” The Department of Children and Families was appointed to operate a “Hot Line” and to investigate abuse and neglect of persons but only if they consented to DCF services. The emphasis was upon physical abuse or neglect rather than upon exploitation of financial resources. The department could remove the vulnerable adult from danger. The department could refer the case to law enforcement for criminal prosecution. Enforcement was after the fact.

In 2018 Chapter 825, Abuse, Neglect, and Exploitation of Elderly Persons and Disabled Adults, created the crime of exploitation of funds, assets or property of an “elderly person or disabled adult” by a person who should know that the person lacks the capacity to consent. The list of offenses is specific and lengthy and includes conspiracy with others. The jury is instructed it may infer exploitation from evidence of listed specific actions proven beyond a reasonable doubt. Again, after the fact.

Now, since July, proactive prevention of exploitation is available in a statutory cause of action seeking an injunction to prevent impending exploitation. Filing is limited to the elderly person or disabled adult, the guardian, an agent under a valid durable power of attorney with authority specifically granted, or a person who simultaneously files a petition to determine incapacity and for the appointment of an emergency temporary guardian with respect to the “vulnerable” adult. The statute provides a form for the petition, requires the clerk copy the adult protective services program so it may file reports of investigations in the court file, waives filing fees and fees for certified copies, issuance of summons and inform petitioner about service of process, and pays the sheriff for service of the temporary injunction.

The temporary injunction may include restraining respondent, awarding a vulnerable adult exclusive use of residence, barring respondent from contact, freezing assets in bank in names of vulnerable adult or respondent, together or separately, in guardianship or in trust. Assets held solely in the name of the respondent must be traceable to the alleged exploitation by probable cause demonstration. The petition must demonstrate overall reasonable cause to believe the vulnerable adult is in imminent danger of becoming a victim of exploitation.

A permanent injunction after hearing against the respondent can determine ownership, require return of assets and restrain future contact and provide for enforcement by contempt of court or by the State Attorney prosecution for a crime.
In sum, the evolution of Florida laws from no help for “diminished capacity”, then to DCF investigations and referrals for “vulnerable adults” and now the new injunction for “vulnerable adults“ has authorized anyone to go to court with probable cause to believe a vulnerable adult is being exploited.

 

Written by Emeritus Lawyer John Howard King.