Exploitation Of The Elderly

An elder abuse lawyer helps vulnerable elderly people to protect themselves, and family members to protect their elderly loved ones. Exactly what action an elder abuse attorney will take depends on the type of abuse, who is perpetrating the abuse, and the elder’s circumstances.

For example, if an elder’s assets are at risk due to financial exploitation, Florida law provides for a temporary freeze to prevent a financial abuser from draining the elderly person’s resources while the victim, family members, or officials are investigating and taking appropriate action. During this time, the judge may also prohibit contact between the elderly person and the alleged exploiter. The injunction can be issued without notice to the abuser, and may remain in effect without a hearing for up to 15 days.

Of course, this is just one example of the type of protective action an elder abuse lawyer may take to protect a vulnerable person from exploitation. Every case is different. An experienced elder abuse attorney can explain the options and help determine the best course of action.

Florida law sets forth a long list of behaviors that constitute exploitation of an elderly person, including:

• Knowingly obtaining, using, or attempting to obtain or use the elderly person’s assets with the intent to deprive the elder of the use and benefit of the assets or to benefit someone else, if that act is committed by someone who is in a position of trust or has a business relationship with the elderly person;
• Commission of the same act by someone who knows or reasonably should know that the elder lacks the capacity to consent;
• Breach of any one of a number of fiduciary duties to an elderly person resulting in unauthorized appropriation, transfer, of sale of property;
• Misappropriation of funds from an account in which the elder placed the funds, owned the funds, and was the sole contributor or payee of the funds before the misappropriation; or
• A caregiver or person in a position of trust intentionally or negligently failing to effectively use an elderly person’s income and assets for the elder’s support and maintenance.

If you are uncertain whether your situation or your elderly loved one’s circumstances constitute financial exploitation, an experienced elder law attorney can be your best source of information.

An elderly person can potentially be financially exploited by any number of people. Unfortunately, a high percentage of financial abuse of the elderly and disabled occurs at the hands of family members or close friends. However, paid caregivers, nursing home employees, financial services providers, con artists, and even sham businesses may commit financial exploitation.

Some of the most common types of elder financial exploitation involve family members or other caregivers siphoning off funds and other property belonging to the elderly person. This may involve an adult child using the elderly person’s funds for his own benefit without the elder’s knowledge, or an in-home caregiver removing small valuables from the home.

However, exploitive transactions don’t always happen behind the elder’s back. An unscrupulous family member or caregiver may exploit the elder’s confusion, isolation and dependence to deceive or intimidate him or her into signing over property.

Examples of exploitation by people other than caregivers and close family members include a “financial advisor” deceiving an elderly person into a fraudulent investment, a trustee using trust assets for the benefit of someone other than the intended beneficiary, or a “new friend” gaining the confidence of an elderly person who has suffered cognitive losses and persuading or deceiving the elder into giving him or her money and other property.

For purposes of the financial exploitation statute, Florida law defines an elderly person as one who is 60 years of age or older and is suffering from “the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.”

The same statute protects certain disabled adults, regardless of age.

Of course, if the elderly person has not been diagnosed with a specific condition, it may be difficult to determine whether he or she falls within this definition. An experienced elder law attorney will use information such as medical records and the testimony of those who have spent time with the elderly person to help establish limitations on his ability to adequately care for or protect himself.

Under Florida law, financial exploitation of the elderly as described above could be a felony. How serious the felony charge is will depend on the value of the property involved. While criminal prosecution of a financial abuser may cut off that person’s access to the victim, and perhaps provide for restitution, it typically occurs after significant damage has been done.

Civil action, such as filing for an injunction to prevent further dissipation of the elderly person’s property and restraining contact between the victim and the abuser often allows for swifter intervention and provides more effective protection for the elderly person.

Yes, a person may be criminally prosecuted and sentenced to jail for a variety of types of elder abuse, including financial exploitation of an elderly person. In fact, financial exploitation involving large sums of money or property with significant value can carry a prison sentence of up to 30 years.

However, it is important to remember that criminal prosecution occurs after a crime has been committed, which likely means that the vulnerable elderly person will already have suffered losses. An experienced elder abuse attorney can help you act earlier, to prevent further dissipation of the elder’s resources. Civil action does not preclude criminal prosecution. In fact, evidence collected to build a civil case may aid in prosecution of a financial abuser.

Who is responsible for attorney fees in an elder abuse case depends on the type of claim involved. Under some circumstances, Florida law allows the victim to recover attorneys’ fees from the exploiter.