Senior Exploitation – Strengthening the Law to Solve a Real Problem
Since the mid-1990’s it has been a crime to financially exploit an elderly person in Florida. For purposes of this law, an “Elderly Person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.
In 2014, Florida’s elder exploitation statute was updated in view of the ever-increasing numbers of seniors and the prevalence of instances involving the financial exploitation of seniors. Financial exploitation of the elderly can take many forms, and includes the illegal or improper use of an elder’s funds, property, or assets. Examples include, among others: forging an older person’s signature, misusing or stealing an older person’s money or possessions, coercing or deceiving an older person into signing a document, and improperly using a conservatorship, guardianship, or power of attorney.
Unfortunately, financial exploitation of the elderly and disabled is reported less frequently than other forms of abuse, for a variety of reasons. The perpetrator may be a relative whom the elderly person trusts and depends upon for assistance, or, in some cases, the victim is highly embarrassed by having been “tricked.” Sometimes, victims are either mentally or physically incapable of reporting the abuse.
The “typical” victim of financial exploitation is between 70 and 89 years of age, Caucasian, female, frail, and cognitively impaired. The financial loss to victims as a result of these types of crimes has been estimated to be almost $3 billion annually, nationwide.
The Florida Legislature revamped the definition of exploitation in the law and deleted the requirement that a person use deception or intimidation to obtain or use a vulnerable adult’s funds, assets, or property. As a result, Prosecutors will now be able to pursue charges against an individual who exploits a vulnerable adult in a broader range of instances. The law added trustees as possible exploiters, and specifies that an “unauthorized appropriation” occurs when a vulnerable adult does not receive the reasonably equivalent financial value in goods or services; or when an appointed fiduciary violates specified duties. The law also creates additional instances that constitute exploitation of an elderly person.
Prosecutions for exploitation sometimes face significant roadblocks. Exploitation can be masked to look like voluntary gifts or loans, and most of the time, these types of transactions occur in secret.
The revamped law creates a permissive presumption of financial exploitation for certain lifetime transfers of money or property by a person 65 or older that meet specific characteristics (i.e., the property transferred is valued in excess of $10,000 at the time of the transfer; the property is transferred to a nonrelative who knew the elderly person for fewer than 2 years before the first transfer; and the elderly person did not receive the reasonably equivalent financial value in goods or services from the transfer).
Elderly Exploitation is a crime, and should be dealt with as such—it should be reported to law enforcement and to Adult Protective Services. With the changes in the financial exploitation law, those agencies now have more tools to help those who have been victimized.
The attorneys at Gibbons | Neuman are available to assist you and your family members in all matters that affect persons as they age. We have special concern for those whom are the most vulnerable to this kind of abuse and need the most protection.