On October 1, 2014, a new law will take affect making it easier to prosecute predators, including those who act as a fiduciary (attorney-in-fact, guardian or trustee), who exploit Florida’s elders and individuals with disabilities. This new law amends Florida’s current criminal exploitation statutes, Fla. Stat. § 825.101 and 825.103, to broaden the definition of exploitation from just taking or using funds of an elder through intimidation or deception to include breaches of fiduciary duty and failing to effectively use a vulnerable adult’s income or assets for necessities such as food, shelter, medical care, or clothing.
Under Florida’s new law, in addition to knowingly obtaining, using or attempting to use an elderly or disabled adult’s property or assets with the intent to deprive the individual of their use or possession, it is a crime:
1. For a fiduciary to breach their fiduciary duty, engage in an unauthorized appropriation of property, abusing its power, intentionally mismanaging assets, committing fraud in obtaining their appointment, or acting contrary to a principal’s best interest;
2. For an individual to misappropriate, misuse, or transfer without authorization money belonging to an elderly or disabled person from an account in which the individual placed funds, owned the funds, or was the sole contributor of funds, including joint accounts established essentially for convenience; or
3. For an individual to intentionally or negligently fail to effectively use an elderly or disabled person’s income and assets for the necessities they require for their support and maintenance by a caregiver or any person who stands in a position of trust.
The new law also creates a permissive presumption of exploitation in instances when a non-relative receives in excess of $10,000.00 in property, in either a single or multiple transactions from a person age 65 or older when the non-relative has known the elder for less than 2 years and the elder has not received “reasonable equivalent financial value” in the transaction. This permissive presumption excludes commercial transactions and bona fide charitable contributions. The permissive presumption allows, but does not require, a jury to presume a transaction was the result of exploitation based on the facts and circumstances.
The penalties for exploitation of the elderly or disabled persons were increased significantly, making exploitation, regardless of value, at least a third degree felony. Finally, the law allows the court to return any money seized with a search warrant to the victim following an evidentiary hearing.
Many of the provisions in this law are the first of their kind in the United States and will serve as a model for other states.
