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Florida’s New Injunction for Protection Against Exploitation of Vulnerable Adults Florida’s New Injunction for Protection Against Exploitation of Vulnerable Adults

Florida’s New Injunction for Protection Against Exploitation of Vulnerable Adults - PowerPoint Presentation

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Florida’s New Injunction for Protection Against Exploitation of Vulnerable Adults - PPT Presentation

Florida Elder Justice Conference Presenters Ellen Cheek amp Nancy Wright April 12 2019 OVERVIEW Elements of Exploitation Exploitation Red Flags amp Case Studies The Process Questions and Comments ID: 760590

petition exploitation provide respondent exploitation petition respondent provide information assets court hearing vulnerable injunction capacity petitioner form property diminished

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Presentation Transcript

Slide1

Florida’s New Injunction for Protection Against Exploitation of Vulnerable Adults

Florida Elder Justice Conference

Presenters: Ellen Cheek & Nancy Wright

April 12, 2019

Slide2

OVERVIEW

Elements of Exploitation

Exploitation Red Flags & Case Studies

The Process

Questions and Comments

Slide3

Elements of Exploitation

Slide4

“Vulnerable Adult” (VA)

18 years old and older

Impaired ability to

Perform normal activities of daily living (e.g., meal preparation and eating, bathing, dressing, grooming, toileting (or continence), ambulation (transferring or walking) OR

Provide for own care or protection

Impairment is due to any of the following: disability (mental, emotional, sensory, long-term physical or developmental), brain damage,

or infirmities of aging

Slide5

What is “Exploitation”?

Defined the same as criminal exploitation in §825.103(1), Fla. Stat.

Five different types are set out, involving different actions and relationships with the VA. Only one specifically

requires

a showing of diminished capacity.

Slide6

1. Depriving the VA of Funds or Property

Using or trying to use a VA’s funds or property with intent to deprive the VA of the use, or to benefit someone else

By someone who either

Is in a position of trust and confidence with the VA OR

Has a business relationship with the VA

Diminished capacity is not required

Slide7

2. Depriving a VA with Diminished Capacity of Funds or Property

Using or trying to use a VA’s funds or property with intent to deprive the VA of them or of the use, or to benefit someone else

By a person who knew or should know that the VA

lacks capacity to consent

Slide8

3. Breach of Fiduciary Duty

Fiduciary includes a trustee, guardian, or POA agent

Unauthorized appropriation, sale or transfer of the VA’s property (VA does not receive reasonable value),

OR

Fiduciary duty violated as follows:

Fraud in appointment;

Abuse of powers;

Wasting, embezzling or intentionally mismanaging assets;

If agent under a POA, acting contrary to the principal’s sole benefit or best interest

Diminished capacity is not required

Slide9

4. Bank Account Misuse

Misappropriation, misuse or transfer without authorization of funds belonging to the VA IF the VA was the sole contributor or payee of the funds

Applies only to

Personal accounts

Joint accounts created with the intent that the VA has all rights to the money deposited

Convenience accounts (see §655.80, F.S.)

Diminished capacity is not required

Slide10

5. Failure to Provide Necessities

Intentional or negligent failure to effectively use the VA’s income and assets for necessities of support and maintenance

By a

Caregiver, OR

Person who stands in a position of trust and confidence (e.g., rep payee)

Diminished capacity is not required

Slide11

Exploitation Red Flags & Case Studies

Slide12

Exploitation Red Flags

“Guests” who overstay their welcome

Landlord/tenant issues attributable to someone other than the senior tenant

Inability to supply routine information regarding income and assets because money controlled by another

Change in ability to meet formerly manageable expenses

Slide13

Red Flags, cont.

Collection issues related to debts incurred on behalf of others

Threatened eviction from long term care facility due to unpaid bills

Denial of benefits based on inappropriate conveyance of real property or other assets

Sudden desire to make changes to estate plans, advance directives or deeds

Slide14

Case Study #1

Hilda has been in an ALF memory unit for several years. Recently, a past “friend” starts visiting frequently, bringing her gifts and food

“Friend” takes Hilda to an estate attorney to discuss changing the woman’s estate plan

Daughter and POA seeks injunction

Slide15

Case Study #2

Eddie lived at home alone until he has a stroke. Son moves in, along with his girlfriend, to be his “caregiver.”

Son and friends run up utility bills, eat all the groceries, pay nothing in rent.

Eddie is now behind in rent and may be evicted.

Eddie has no one else to take care of him and he is afraid that his son may hurt him if he is asked to leave.

Slide16

Case Study #3

Emily has never been able to handle finances, and when her husband dies, a granddaughter says she will help.

The granddaughter and Emily open a joint bank account together, where all of Emily’s SS and pension checks are deposited. The granddaughter only contributes about $50 a month, at most.

The granddaughter

is using money from the joint account to pay for personal items on

Amazon.com

.

Slide17

The Process

Slide18

Who can bring the action?

The Vulnerable Adult (“VA”)

The VA’s guardian

A person or organization acting on behalf of the VA

with consent

of the VA or guardian.

A person who also files for appointment of emergency temporary guardian of the VA

NO ATTORNEY IS REQUIRED

Slide19

Venue

In the circuit where the Vulnerable Adult resides OR

If there is a pending guardianship, it is filed in that proceeding

Fees and Costs

No filing fees or fees for service of process can be assessed initially, but may be paid through assets.

Respondent may have to pay costs if exploitation is found. Petitioner is only responsible for “actual damages” if there was no substantial factual or legal support.

Slide20

Clerk’s Role

Provide an informational brochure about exploitation and why you should not provide false information to the court

Provide simplified petition forms and instructions

Provide forms to report violations of an injunction

Facilitate filling out forms

but cannot provide legal advice

Arrange service of pleadings and orders (via sheriff or law enforcement agency)

Slide21

Other help

Advocates from State Attorney’s Office, law enforcement, or APS

can be present with petitioner or respondent at any court hearing

APS

must provide the court the results of “any relevant investigations” related to the VA within 72 hours of receipt of any petition or order.

 

L

aw enforcement

may accompany the VA to assure that possession of a dwelling is returned to the VA, pursuant to the court’s order.

Slide22

The Petition

Must be

verified

Petitioner swears to have called APS report on allegations of exploitation

Suggested Petition Form** is set out in statute, but form can and should be modified as needed, particularly to add information on the vulnerable adult

Allege sufficient facts to establish the likelihood that exploitation is, or is in imminent danger of occurring.

Slide23

Contents of Petition

About the Respondent

Identification and contact information

How associated with VA (caregiver, fiduciary, position of trust or confidence?)

Any pending actions between VA and respondent

About the VA*

Who is the vulnerable adult?

What makes the person a “vulnerable adult”?

Who is responsible for care, and are alternate arrangements available or needed?

*THE STATUTORY FORM DOES NOT HAVE A SPACE FOR THIS INFORMATION. UNTIL YOUR DIVISION MODIFIES THE FORM, PLEASE HAVE THE PETITIONER ADD THIS INFORMATION.

Slide24

Contents of Petition, continued

About the exploitation

Describe in detail (including dates) all incidents of actual or threatened exploitation

List “exploited” assets, accounts, lines of credit, approximate worth and related financial institutions

Provide any critical expenses of VA that must be paid, notwithstanding a freeze

Slide25

Supporting Documents

Consent to File Petition on behalf of Vulnerable Adult:

The statute does not require written consent, but use of a form to show consent may be most efficient. Form could be filed with Petition or separately.

Affidavits

:

If any witnesses other than the Petitioner can testify about the exploitation, a written affidavit (sworn and notarized) of their statement can be attached to the petition. This person should be available to testify at an evidentiary hearing, as well.

Other Evidence

:

This could include law enforcement reports, APS reports, any bank statements, letters or emails from the respondent, etc.

Any documents that are attached should be referenced in the verified Petition or a supporting Affidavit to identify the document and its contents.

Slide26

Motions and such

Notice of Confidential Information**

:

See FL Rule of Judicial Administration 2.425 The Notice will direct the clerk to redact before making public.

Request for accommodations for disabilities**

(ADA)

Motion to Testify by Telephone or Video**

:

The ADA request for accommodations does NOT include cases where the victim or any witness may be too ill to travel to the court, but could testify at the hearing by phone. It is recommended that you file this motion along with the petition. Any testimony by phone or video requires the presence of a notary to verify identification and swear in the witness.

Request to Dismiss Petition if Temporary Injunction Denied**

Slide27

Temporary ex parte injunction

For a limit of 15 days without notice to the respondent (

ex parte

).

The court can:

Prohibit contact, including awarding possession of dwelling to VA

Freeze assets or credit lines of VA, even if held jointly or in respondent’s name only

Allow for certain expenses to be paid notwithstanding a freeze, if the need is set out in the Petition

Provide directives to law enforcement officers

Slide28

Orders on Temporary Injunction

Denied

– Court must enter order noting legal grounds

Petitioner can file an amended petition to correct, if possible

Denied, but solely on the failure to show immediate danger

Court still must set hearing “at earliest possible date”

Granted

Order sets hearing within 15 days

Slide29

Evidentiary Hearing

All hearings are recorded.

Both petitioner and respondent will have the right to call witnesses at a hearing.

The normal rules of evidence apply, including exclusion of hearsay and authentication of documents.

Judicial notice can be taken of any court records.

Slide30

Legal Requirements for Injunction

Being exploited or in imminent danger of being exploited

Likelihood of irreparable harm

Substantial likelihood of success on merits

Threatened injury to the VA outweighs possible harm to the respondent

Slide31

Injunctive Relief After Hearing

Continue the temporary injunction, in whole or part

Restrain the respondent from exploiting

Award the VA exclusive use and possession of the dwelling (after confirming the availability of alternate caregivers, if needed)

Ordering the respondent to participate in treatment

Directing assets to be returned to the VA or remain frozen until ownership can be determined

If there has been exploitation, order respondent to pay costs

Order other relief necessary to protect the VA

Slide32

POLL

Does your program assist

pro se

petitioners?

Y/N

If yes, are these petitioners advised

In a clinic format?

In office?

Both?

How likely are you to provide representation in a financial exploitation case?

Very likely

Not likely at all

Slide33

Questions and Comments

Slide34

Stories, Questions and Concerns

We would like to collect information on how this is working, questions that arise, and procedures adopted by courts across the state. Please email:

Lreithmiller@floridabar.org

Put

“Exploitation Injunction”

in the subject line

Slide35

Contact Information

Nancy Wright,

EsqUF Health Senior MLPOf Counsel TRLSGainesville, FLNancy.wright@trls.org

Ellen Cheek,

Esq

Fla

Senior Legal Helpline

Bay Area Legal

Svcs

,

Inc

Tampa, FL

echeek@bals.org