Many senior adults require some degree of caretaking as their physical and mental faculties decline. Caretakers may be granted formal legal powers over the senior’s affairs and act as a fiduciary through a guardianship or power of attorney. Caretakers may also be a family member, friend, or other acquaintance who helps a senior manage their affairs.
In Florida, anyone who stands in a position of trust and confidence to an elderly person is expected to put the elder’s needs first, and not to obtain or use the elder’s assets for their own or anyone else’s purposes. The legal consequences of violating Florida’s elder exploitation laws are severe and can include punitive damages, triple damages, and attorneys’ fees.
The Business Trial Group elder exploitation lawyers handle cases on a contingency-fee basis. You pay no up-front fees for our services, and no fees at all unless and until we make a recovery in your case.
Elder Fiduciary Abuse
When an elder’s faculties decline to the point where they are no longer capable of making important decisions about their health and finances, a trusted person may be granted special legal powers to make decisions on the elder’s behalf through a guardianship or a power of attorney.
Both a power of attorney and a guardianship create what is known as a fiduciary relationship between the senior citizen and the person who is entrusted with their decision making. The person granted executive power over the senior citizen’s affairs is known as a fiduciary.
Fiduciaries are held to very high standards of care because of the potential for them to abuse their authority. In the context of a power of attorney and a guardianship, the fiduciary must always put the elder’s interests first. There can be strong legal consequences for fiduciaries who abuse their power and put their own interests above those of the elder under their care.
Florida Power of Attorney
A power of attorney allows a chosen person—known as an agent, or attorney-in-fact—to make financial and other personal decisions on behalf of the elder (“the principal”).
The actual terms of the power of attorney are flexible; the agent’s surrogate powers can be specific and temporary, or broad and indefinite, lasting until the principal’s death.
When an incapacitated senior citizen requires someone else to make decisions on their behalf, Florida courts typically favor the least restrictive means necessary. Often, this means a power of attorney. However, the incapacitated elder’s family may decide to petition the State of Florida to declare the senior citizen a ward of the state and appoint a permanent guardian.
Like a power of attorney, guardianship powers vary based on the level of the elder’s incapacitation. The key difference between a power of attorney and a guardianship is that the latter entails court oversight and requires the guardian to make annual reports to the court that detail the guardian’s fiduciary activity.
Breach of Fiduciary Duty
Under Florida’s elder exploitation laws, a breach of a fiduciary duty occurs whenever the agent or guardian does not act in the best interests of the elder. This includes actions such as:
- Unauthorized appropriation, sale, or transfer of an elder’s property by the agent or guardian
- Wasting, embezzling, or intentionally mismanaging the elder’s assets
- Misappropriating, misusing, or transferring without authorization money from an elder’s account
- Failing to properly use an elder’s assets for their support and maintenance
Financial exploitation of a senior citizen is a serious violation of Florida law that should be discussed with an elder abuse attorney.
Financial Exploitation of Senior Citizen by Caregivers and Other Confidants
Fiduciaries are not the only individuals who can be held liable for senior citizen financial exploitation in Florida. Any person who “stands in a position of trust and confidence with the elderly person” is subject to legal duties similar to those of a fiduciary.
While broad, this definition ensures that virtually anyone close to a senior citizen who financially takes advantage of them can be held legally responsible. This includes family members, relatives, friends, neighbors, health care workers, and community members such as church or synagogue leaders. These individuals might act in a formal caregiving role and be paid to provide care or they could provide help and support to a senior citizen on a volunteer, informal basis.
The types of activity that constitute senior citizen exploitation are similarly broad, covering a wide range of actions that are contrary to the elder’s interests. According to Florida statute, exploitation occurs when an individual obtains or uses—or attempts to obtain or use—an elderly person’s funds, assets, or property to benefit someone other than the elder. Although this standard of care is not the same as a fiduciary duty, it is similar, as it creates the standard that the elder’s funds, assets, and property should always be used for the elder’s interests and their interests alone.
Florida Undue Influence, Fraud, and Will Contest Attorneys
Financial exploitation that occurs during the senior citizen’s lifetime may not be discovered until after their death. Often, the discovery is made during the probate process, when estate assets are under scrutiny.
It could be the case that a fiduciary or caregiver took, misappropriated, or misused a senior’s personal assets and squandered beneficiaries’ inheritances. Someone in a trusted position could also illegally try to cut heirs out of a will, or get themselves written into the will. This might be done through undue influence or fraud—both of which are grounds for a will contest in Florida.
If you suspect that a decedent’s will does not match their true intentions, and that a caregiver or fiduciary is responsible for changes to the will, you should discuss the situation with our Florida will contest attorneys.
Florida Senior Exploitation Red Flags
Elder financial abuse can be easier to spot if you know the warning signs. Here are some of the most common red flags for exploitation:
- Significant withdrawals from the senior’s bank account, or transfers between accounts.
- Increased spending, changes in spending patterns, or credit card charges that are unexplained or unusual.
- Another person is added to a senior citizen’s bank/credit card account or given signatory powers.
- The senior has unpaid health care or lacks health care, despite having the funds needed to pay health bills.
- Unusual changes to the senior’s estate plan or property deeds.
- Changes in the senior’s behavior or personality.
- A person in a position of trust is trying to isolate the senior.
- Gifts or payments to caregivers that seem excessive.
Anyone who suspects senior financial exploitation is required to report the potential abuse to Florida Adult Protective Services. Failure to report exploitation can be treated as a crime.
The Florida Abuse Hotline is available 24 hours per day at 1-800-96-ABUSE. Abuse can be reported online here.
Legal Help for Florida Elder Exploitation
Whether elder financial abuse is discovered during the senior’s lifetime or after their death, it is serious misconduct that can result in a civil action and the recovery of monetary damages.
The Business Trial Group’s elder abuse attorneys handle financial exploitation lawsuits on a contingency-fee basis, so you pay no retainer or hourly fees. And in many elder exploitation cases, it is possible to shift attorneys’ fees to the other party and recover punitive damages.
Learn more about contingency-fee elder litigation and how we can help during a [no-cost, no-obligation case review.
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