As our state and our nation grows older, more and more instances of exploitation or transactions that should be considered exploitation occur, victimizing our elders. Over the past few years, elder exploitation has grabbed the attention of federal and state law makers, federal and state agencies, and local governments. Because Florida is the state with the fastest growing aging population, it has taken the lead in examining antiquated exploitation laws and developing better ways to protect Florida’s elders.
Florida recently passed a new criminal exploitation law that changes the way Florida looks at and reacts to exploitation of our elderly citizens. Florida’s new criminal exploitation law eliminates the requirement that an elderly be exploited by intimidation of deception or that an elder must lack capacity to be exploited. Exploitation is defined as obtaining or using, or endeavoring to obtain or use, an elderly person’s funds, assets, or property with the intent to temporarily or permanently deprive the elder of its use or benefit. The new law specifies several actions that can be now be considered exploitation:
1) A breach of a fiduciary duty by a guardian, trustee, or agent may be considered exploitation.
2) Acting contrary to the principal’s sole benefit or best interest may be considered exploitation.
3) Taking assets from a joint account if the sole contributor is the elderly person may be considered exploitation.
4) Intentionally or negligently failing to use the elder’s assets to support and maintain the elder may be considered exploitation.
5) It may also be presumed to be exploitation if a non-relative who has not known the elder for more than two years “borrows” or receives “gifts” in excess of $10,000 from an elder.
Finally, the new laws includes a hearsay exception that allows the out-of-court statements by an elder that describe any act of abuse, neglect, exploitation, battery, or violent act to be admissible if that elder is unavailable to testify.
If you have questions about the changes to Florida’s exploitation laws; or, if you are a trustee, guardian or an agent with questions about any new duties you may have under these new laws, please contact an elder law attorney for more information.