Protecting the elderly from financial exploitation: the dilemma and solution, Part II.

• Author: Harrison, R. Craig
• Position: Elder Law

There are remedies available to the person with diminished capacity who has been financially exploited. The problem is to convince the person to bring or consent to an action against the perpetrator and to prove that a transfer of an asset to a perpetrator was not a gift to, or compensation for, services rendered by the perpetrator or that an estate planning document is invalid. The ability of third parties to assert claims for pre-death/incapacity exploitation without the cooperation and consent of the person are limited or nonexistent.

Role of Department of Children and Family Services

The Florida Legislature adopted the Florida Adult Protective Services Act to provide for the detection and correction of abuse, neglect, and exploitation of a "vulnerable adult" through both social services and criminal investigations. (1) The act established a program of protective services for all vulnerable adults in need of them, and it imposes mandatory reporting and requires immediate protective service investigations. (2) The act authorizes the Department of Children and Family Services to contact law enforcement for assistance if an investigation is being prevented by a caregiver. The act requires the department to notify law enforcement if there is a reason to believe that abuse, neglect, or exploitation has occurred. (3)

The act provides the department with complete access to all medical, social, and financial records of the vulnerable adult, authorizes and requires the department to provide protective services or protective supervision to the vulnerable adult, and provides for emergency and nonemergency intervention. (4)

The term "vulnerable adult" is defined broadly to mean "a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. (5)

Nevertheless, the department cannot provide protective services or supervision (even emergency protective services) to a vulnerable adult who does not consent to such services or supervision. (6) The department cannot even access the medical, social, and financial records of the vulnerable adult, if he or she specifically prohibits such access. (7) Only if the vulnerable adult has consented to protective services can the protective services be continued without consent, but only when there was an emergency removal. (8) Such emergency services cannot continue more than a 60-day period. (9) The emergency protective services authorized in F.S. [section] 415.1051(2) is further limited to abuse or neglect (not exploitation) of the "vulnerable adult" relating to death or serious injury.

"Capacity," as defined by the act, is no different than legal capacity. "'Capacity to consent' means a vulnerable adult has sufficient understanding to make and communicate responsible decisions regarding the vulnerable adult's person or property, including whether or not to accept protective services offered by the department." (10) Conversely, the act defines the "lack of capacity to consent" as "a mental impairment that causes a vulnerable adult to lack sufficient understanding or capacity to make or communicate responsible decisions concerning person or property, including whether or not to accept protective services." (11)

Although the act defines "vulnerable adult" broadly to include persons with diminished capacity who are subject to undue influence, the department is powerless to protect such a person from exploitation through the use of undue influence without that person's consent. The department's role becomes one of investigation, reporting, consultation, and the preservation of evidence for future court proceedings.

Limited Criminal Prosecutions for Financial Exploitation

The Florida Adult Service Act requires the department to orally notify law enforcement of alleged abuse, neglect, or exploitation of the vulnerable adult. Within five working days, after the oral notification, the department must submit a written preliminary report to law enforcement. (12) If it conducts its own investigation, law enforcement must submit its findings to the state attorney and the department within five working days after concluding the investigation. (13) The state attorney must determine whether a prosecution is justified under the circumstances and report its findings to the department. (14)

Criminal prosecutions for financial exploitation are governed by F.S. [section] 825.103(1). Ch. 825 uses the term "elderly person," not "vulnerable adult," but the definitions are basically the same. "Elderly person" is defined as "a person 60 years of age or older who 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." (15)

The definition of "elderly person," like that of the "vulnerable adult," would include a person with diminished capacity who is subject to undue influence. Nevertheless, proving the...