Elder Abuse

Elder abuse claims frequently arise in connection with the probating of a loved one’s estate and are part of what is known as “probate litigation”. Probate itself includes the dissolution and distribution of an estate after a person’s death. A party can be held civilly liable for abuse, neglect, and exploitation of a resident and can also be found criminally liable.

Under Florida law, statute §415.11, provides for a civil law cause of action for abuse of the elderly. The statute states, “A vulnerable adult who has been abused, neglected or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect or exploitation.” The law suit can be brought by either the person who is being abused, the abused party’s guardian, an organization acting on behalf of the abused party (with the consent of abused person or their guardian) or personal representative of the abused person’s estate if they are deceased. Elder abuse is often done by someone close to the elder like a Neighbor, Caregiver, Friend or Relative. Florida law dictates that theft or exploitation of the elderly can demand a minimum of $200 in damages, attorney’s fees, and court costs.

Abuse is defined as any “willful” act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health. Exploitation of the elder party may include a breach of fiduciary relationship (including guardianships or power of attorneys which could result in unauthorized acts with elder’s property), unauthorized taking of personal assets, or misuse of money belonging to the vulnerable adult.

Warning Signs of Elder Abuse

Financial abuse:

• The abuser will often isolate the elder from other people and family members.
• Any large cash withdrawals or transfers between bank accounts (beware of the shell game)!
• Signatures on checks and documents that do not look like the elderly person’s handwriting.
• The elder signing over power on bank accounts “for convenience purposes.”
• Any sign of excessive reimbursement or major gift purchases for the caregiver.
• Increase Credit Charges.
• Adding someone to their credit card with charging privileges.
• Unexplained CHANGE in estate planning or estate planning attorney.
• Changes in home: major improvements, title, or deed holder change.

Illustrative Examples Involving Elder Abuse

• A niece did not have a good relationship with her aunt and uncle. After her aunt passed away her uncle became very depressed. The niece then became very close with the uncle and him create a joint account and add her to all of them. She also had him remove all his stock certificates from his home and place them in their now jointly owned safety deposit box. After waiting approximately, ONE day, she proceeded to clean out the money from the bank accounts and sell the stock.
• An insurance sales representative sells an elderly, wheelchair-confined woman three separate Medigap policies, two heart insurance policies, and cancer insurance. The checks for the policy were made payable to him because he explained to her that he would be able to recover his commission faster that way. One day the woman’s wheelchair broke and she contacted the insurance agency. The agency informed her that they had never heard of her and there was no record of her.
• Gordon institutes guardianship over his mother’s proceedings. The court orders that all the mother’s accounts be placed in a restricted depository account in the name of the guardianship. Melvin, as guardian, transfers all his mother’s accounts over into his name. Some of the accounts however were held jointly by the mother and Melvin’s stepsister. So, by Melvin taking over the accounts he is potentially disinheriting the stepsister without notifying the mother or the court.

Attorney Andrew J. Pascale focuses on Florida Exploitation of the Elderly and Florida Abuse of the Elderly cases. Do not wait until it is too late! If you fear that an elderly family member or loved one is being exploited, contact me.