Elder Financial Exploitation
Florida law provides forceful civil remedies victims of elder financial exploitation. In fact, it’s one of the most progressive laws in the country, extending a viable financial recovery option for vulnerable elderly or disabled adults who are swindled out of funds, assets or property.
As the Fort Lauderdale elder financial exploitation attorneys at The Ansara Law Firm can explain, such actions – usually by someone in a trusted position – are not only criminal, but also grounds for civil action.
Elder abuse and exploitation is a serious – and growing – problem affecting millions of aging people across the country. Though we often tend to think of “abuse” as involving physical, emotional or even sexual crimes, reports of financial or material exploitation account for more than 12 percent of all reports of abuses on older folks, according to the National Center on Elder Abuse. In fact, it’s estimated there are more than 5 million cases of financial abuse every year in the U.S. While that’s a staggering figure, the reality is it’s probably much higher because it often goes undiscovered or unreported.
Since we also represent individuals in probate litigation, the elder financial exploitation lawyers at our Fort Lauderdale firm understand these crimes can also impact the elder adult’s estate, and in turn his/ her heirs. In fact, many cases of elder financial exploitation may not be discovered until after the victim has died. In most cases, it will be up to the estate of decedent (headed by estate’s personal representative) to take legal action.What Is Exploitation of an Elderly Person?
As defined in F.S. 825.103, exploitation of an elderly person involves knowingly using or obtaining – or trying to use or obtain – an elderly/ disabled adult’s money, assets or property with the intention of depriving them (either temporarily or permanently) of the use, benefit or possession of those things.
It also occurs when a person who is in a position of trust or confidence or who has a business relationship with the victim takes or tries to take money or assets to benefit someone other than the rightful owner, where the victim lacks the capacity to consent. It can also refer to a breach of fiduciary duty to the elderly person by a guardian, trustee, agent under a power of attorney or another to facilitate unauthorized appropriation, sale or transfer of property. A Fort Lauderdale elder financial exploitation lawyer must show defendant knew or should have known the vulnerable adult lacked the capacity to consent to such actions.
Specifically as that relates to guardians, trustees or agents, that can mean:
- Abusing their powers;
- Wasting/ embezzling/ intentionally mismanaging assets of the elderly person or beneficiary;
- Acting in a way that is contrary to the best interests of the elderly person;
- Committing fraud in their appointments;
- Misappropriating/ misusing or transferring money or assets without authorization;
- Negligently or intentionally not effectively using the elderly/ disabled adult’s assets and income to cover the victim’s required support and maintenance.
There is a presumption of exploitation anytime there is a transfer of property or money valued in excess of $10,000 or more (whether in single or multiple transactions) belonging to a non-relative over the age of 65 who the transferor has only known for 2 years or less and when the elderly person did not receive the reasonably equivalent value in goods or services. In other words, if this scenario applies, exploitation is presumed and the burden of proof will be on the accused in a criminal case. When the value of property is between $10,000 and $50,000, it’s considered a second-degree felony, punishable by up to 15 years in prison. Where assets transferred are less than $10,000, it’s a third-degree felony, punishable by a maximum of five years in prison.Civil Remedy for Theft or Exploitation
There are two statutes that allow for a civil cause of action when elder financial exploitation is alleged. Those are:
- F.S. 772.11, civil remedy for theft or exploitation;
- F.S. 415.111, civil actions for vulnerable adult who has been abused, neglected or exploited.
The first statute is broader as it relates to a civil remedy for anyone who has suffered losses from theft. It allows that any person who can prove by a standard of clear and convincing evidence that he/ she has been injured in any fashion by theft or exploitation has a cause of action for threefold the actual damages sustained – with a minimum amount of $200 – PLUS coverage of reasonable attorney’s fees and court costs in both the trial and appellate courts.
Before filing the case, the plaintiff must make a written demand for either $200 or whatever three times the amount of damages is. If that demand is rebuffed (as it often is), then plaintiff can pursue a court case with the assistance of an elder financial exploitation attorney in the Fort Lauderdale area. Punitive damages aren’t awarded under the section.
F.S. 415.111, meanwhile, allows specifically for a cause of action (grounds for a lawsuit) when a vulnerable adult has been financially exploited. Under this provision, claimants can seek both actual AND punitive damages. Further, the action can be brought by:
- Vulnerable adult;
- Vulnerable adult’s guardian;
- A person/ organization acting on behalf of vulnerable adult with consent of that person or guardian;
- Personal representative of the estate of decedent, regardless of whether the cause of death resulted from abuse, neglect or exploitation.
Those who prevail in these cases are entitled to also recover reasonable attorney’s fees, costs of the action and damages.
Contact the Fort Lauderdale Lawyers at The Ansara Law Firm at (888) 267-2728 or by email. Serving Broward, Miami-Dade and Palm Beach Counties.