Protecting the Elderly from Financial Exploitation: The Dilemma and Solution, Part II

If someone with a disability has been taken advantage of financially, they can take legal action against the person who exploited them. But it can be hard to prove that the transfer of money or property was not a gift or payment for services. It’s also difficult for other people to make a claim for the exploited person without their permission. The Department of Children and Family Services in Florida is responsible for protecting vulnerable adults from abuse, neglect, and exploitation. They can provide social services and investigate potential crimes. They have access to medical, social, and financial records of vulnerable adults and can provide emergency intervention if needed. However, they can only provide services if the vulnerable adult consents, unless there is an emergency situation. In simple terms, “capacity to consent” means a vulnerable adult can understand and make responsible decisions about their own life and belongings. “Lack of capacity to consent” means a vulnerable adult has a mental impairment that makes it hard for them to make responsible decisions. The law protects vulnerable adults from exploitation, but the department can only step in if the person agrees to it. If not, the department can investigate and gather evidence for court. If someone over 60 is taken advantage of financially, it’s hard to prove and prosecute. The Department of Adult Services has to tell the police about any suspected abuse within 5 days, and then the police have to investigate and report back to the department. The state attorney will decide if there’s enough evidence to press charges. It’s tough because the evidence can be confusing. Florida law has two crimes for financial exploitation of elderly people. One requires proof that the elderly person lacked the capacity to consent to the transaction. The other requires proof that the perpetrator obtained the assets by deception or intimidation. In a case where parents with diminished capacity gave $847,000 to their son, the son was charged and convicted of exploitation. The court found that there was not enough evidence to prove that David used deception or intimidation to get money from his parents. Although it was suspicious because he had stolen money from them before, the state couldn’t prove he did anything wrong this time. In a similar case, a granddaughter was accused of taking advantage of her grandmother by getting loans for things like a wedding and a business. The court said there wasn’t enough proof to convict her either. The court reversed the conviction for financial exploitation because there was no evidence that the person obtained money from their grandmother through intimidation or deceit. It can be difficult to prosecute someone for financial exploitation if the elderly person is able to understand what they’re doing. The only way a vulnerable adult can bring a civil action against the perpetrator is if they have capacity and are not under the influence of someone else. The Florida Power of Attorney Act allows certain people and organizations to challenge the actions of someone acting as an agent under a power of attorney. This includes the person who gave the power of attorney, the agent, and others who have a stake in the well-being of the person giving the power of attorney. However, it is not clear if they can bring a legal action if the person still has the ability to make their own decisions. There is no clear answer to this question in the law or in court cases. The Florida Rules of Civil Procedure allow a person authorized by law to bring a legal action on behalf of a vulnerable adult, even without the adult’s consent. However, if the adult objects to the legal action, they still have the power to influence the outcome. It’s important for attorneys to protect vulnerable adults from being taken advantage of. One way to do this is through a trust that limits the adult’s ability to make changes when they are no longer able to make decisions. However, this can be a difficult balance between protecting the adult and respecting their wishes. A revocable trust has a person who makes the trust (settlor), a person who takes care of the trust (trustee), and a person who gets the benefits from the trust (beneficiary). The settlor can also be the trustee and can change or end the trust, take out money or things from the trust, and decide how the trust money is used. If the settlor can’t handle the trust anymore, there is someone else who will take over as the trustee. But even if the settlor can’t handle the trust, they can still change or end the trust if the trust doesn’t say otherwise. This can cause problems and expensive legal fights. If someone who made a trust seems unable to make good decisions because of their health, the trust can have rules that suspend their power to make decisions. These rules can be put in place if a doctor confirms that the person’s judgment is impaired. Florida law doesn’t forbid these kinds of rules in a trust. The trust can also say how the person’s power can be restored if they get better or can make decisions on their own. This can be decided by a court or a doctor. The Florida Trust Code and Genova may prevent a trustee or family member from challenging a trust amendment or revocation during the lifetime of the settlor with diminished capacity. However, the trust terms can authorize someone to challenge the exercise of a reserved power, particularly if the exercise of the power was influenced by others. Many elderly adults with diminished capacity want to maintain their rights and may become dependent on others, making them vulnerable to undue influence. Estate plans can be created to protect these individuals, but they can be difficult to prepare and implement. These are references to specific laws in Florida and court cases. They are related to issues of guardianship, trusts, and estates. The author of the article is a lawyer who specializes in these areas of law. This column is written by the Elder Law Section, with Jana McConnaughhay as the chair and Stephanie M. Villavicencio as the editor. Their goal is to teach their members about serving the public, improving how justice is carried out, and advancing the study of law.

Source: https://www.floridabar.org/the-florida-bar-journal/protecting-the-elderly-from-financial-exploitation-the-dilemma-and-solution-part-ii/