New Tool to Stop Exploitation of Elderly

As of July 1, 2018 Florida created two new statutory tools in the fight against exploitation of elderly.

The legislation created new F.S. 825.1035 (which creates a new cause of action authorizing immediate ex parte injunctions freezing contested assets), and also created new F.S. 825.1036 (which creates a new set of penalties, both civil and criminal, for perpetrators violating these injunctions).

The new exploitation of elderly law creates a cause of action for an injunction for protection against the exploitation of a vulnerable adult.

The bill defines the term “vulnerable adult” to have the same meaning as provided in the “Adult Protective Services Act” (APSA), and defines the term “exploitation” to mean the same as it does under s. 825.103, F.S. The cause of action does not require that a party be represented by an attorney, nor is a party prohibited from filing an action if another cause of action is currently pending between the parties. The bill provides that a petition can be filed by any of the following individuals:

  • A vulnerable adult in imminent danger of being exploited or their guardian;
  • A person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian; or
  • A person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian.

The new exploitation of elderly law does not impair a person’s right to relief  that the person has left a residence or household to avoid exploitation of the vulnerable adult.

Also, the petition may be filed in the circuit court in which the vulnerable adult resides.

In the event a guardianship proceeding is pending at the time of filing, then the petition must be filed in that proceeding. There is no minimum requirement of residency to petition, nor is there a requirement for actual exploitation to have occurred for an injunction to be issued.

Enforcement works as follows:

The law amends s. 741.31, F.S., and s. 901.15, F.S.making a violation of an injunction a first degree misdemeanor (or a third degree felony if the individual has two or more prior convictions for the violation of an injunction) and allows law enforcement to arrest an individual, without a warrant, when there is probable cause to believe the injunction has been violated. A first degree misdemeanor is punishable by up to a year in prison while a third degree felony is punishable by up to 5 years in prison and a $5,000 fine.

The bill authorizes the court to enforce a violation of an injunction through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under s. 741.31, F.S. The court may enforce the respondent’s compliance with the injunction through appropriate civil and criminal remedies, including, a monetary assessment or a fine. The clerk of the court is required to collect and receive such assessment or fine. On a monthly basis, the clerk is directed to transfer the moneys collected to the Department of Revenue for deposit in the Domestic Violence Trust Fund.

If the respondent is arrested by a law enforcement officer under s. 901.15(6), F.S., or for a violation of s. 741.31, F.S., the respondent must be held in custody until brought before the court to enforce the injunction for protection against the exploitation of a vulnerable adult. Pending a hearing, the court may require respondent to post bail in accordance with ch. 903, F.S., and the applicable rules of criminal procedure.

Shannon Miller has prepared the Exploitation Injunction Handbook July 2018 (including sample forms and commentary) that can be used when contemplating this type of action.

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