Financial Exploitation of the Elderly

Most accusations of financial exploitation of the elderly involve disputes between family members or caregivers over managing an elderly person’s income, bank accounts, and other assets.

Other types of financial exploitation crimes involve allegations of theft, fraud, unauthorized real estate transactions, contractors scams, investment scams, or consumer fraud.

Florida Statute 825.103, entitled “Exploitation of an Elderly Person or Disabled Adult,” became effective on October 1, 2014. The new statute made it easier for prosecutors to convict people who prey on the elderly and enhanced the penalties that could be imposed after a conviction.

The most common forms of financial abuse of the elderly are discovered when:

• financial documents or a “power of attorney” form was forged with their signature;
• assets are transferred to “friends” who assist with the finances;
• bills go unpaid despite adequate income;
• checks are written to “cash” for large amounts;
• money is transferred out of a bank account without consent;
• unauthorized changes are made to wills or other estate documents;
• a former caregiver improperly remains as the Social Security representative payee;
• cash, valuable objects, or financial statements go missing.

An elderly person might also learn about exploitation when asked to sign a financial document they do not understand. Family members might learn about the abuse if the oversight of finances is surrendered to others without explanation or consent.

Allegations of elder abuse for physical, emotional, and financial exploitation are often reported to the Florida Abuse Hotline at 1-800-962-2873 (1-800-96ABUSE). Any complaint to the hotline might trigger a criminal investigation.

Criminal penalties also exist for elder financial exploitation committed by a for-profit professional guardian appointed by the court to manage the “ward” and their assets in a guardianship case.

Attorney for the Exploitation of the Elderly in Tampa, FL

The attorneys at Sammis Law Firm in Tampa, FL, help family members who have discovered that the financial exploitation of an elderly person is occurring. Many cases involve a caregiver deliberately exploiting an elderly or disabled person for ill-gotten financial gain.

Although we are selective in the cases we take, we also represent clients accused of mistreating vulnerable adults involving financial exploitation. The investigations often begin with a call from an investigator with DCF’s Adult Protective Services APS.

We are familiar with injunctions for protection against the exploitation of a vulnerable adult filed under section 825.1035, Florida Statutes (sometimes called “the protective order against the exploitation of the elderly”).

Contact us to discuss any investigation pending in Tampa or Plant City in Hillsborough County, St. Petersburg or Clearwater in Pinellas County, New Port Richey or Dade City in Pasco County, Bartow or Lakeland in Polk County, or Brooksville in Hernando County, FL.

Call 813-250-0500.

Penalties for Exploitation of the Elderly or Disabled

The penalties for financially exploiting the elderly depend on the value of the money, funds, assets, or property involved:

• if the property is valued at less than $10,000, then the crime is a third-degree felony, which is punishable by up to five (5) years in prison and a $5,000 fine;
• if the property is valued at $10,000 or more but less than $50,000, then the crime can be charged as a second-degree felony, which is punishable by up to fifteen (15) years in prison; or
• if the property is valued at $50,000 or more, the crime can be charged as a first-degree felony, which is punishable by up to thirty (30) years in prison.

Under § 825.101(12)(c), Fla. Stat., the amounts of value of separate properties involved in exploitation committed under one scheme or course of conduct may be aggregated in determining the total value of the property involved in the exploitation.

The total amount of property in an exploitation scheme can be combined regardless of whether the exploitation involves the same person or several different people.

Under § 825.101(12), Fla. Stat., the term “value” means a value determined according to any of the following:

• The property’s market value at the time and place of the offense or, if the market value cannot be satisfactorily ascertained, the cost of replacing the property within a reasonable time after the offense.
• In the case of a written instrument such as a check, draft, or promissory note, which does not have a readily ascertainable market value, the value is the amount due or collectible.
• The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by the loss of the instrument.
• The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered because of losing an advantage over those who do not know of or use the trade secret.

Under § 825.101(12)(b), Fla. Stat., if the value of the property cannot be ascertained, the jury may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.

Severity Rankings for Crimes of Exploiting the Elderly

The “Scoresheet Preparation Manual for the Florida Criminal Punishment Code” from the Department of Corrections (DOC) lists the severity ranking, felony degree, description of the felony, and the Department of Corrections offense code as follows:

The offense severity rankings for crimes involving exploiting the elderly are essential because a criminal code scoresheet is required for all felonies subject to the Criminal Punishment Code. The scoresheet plays a role in the prosecutor’s offer to resolve the case before trial and what sentence the court might impose at sentencing.

Elements of the Exploitation of an Elderly Person or Disabled

Under Florida law, there are several different ways that exploitation can be charged. Each alternative way of charging the crime requires that the victim is either an elderly person or a disabled adult.

Under § 825.101(43), Fla. Stat., the phrase “disabled adult” is defined as a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

Under § 825.101(4), Fla. Stat., the legal definition of “elderly person” is 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 dysfunction, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

Exploitation Through a Position of Trust or Confidence or Business Relationship

Under Florida Statute § 825.103(1)(a), for a prosecutor with the State Attorney’s Office in Florida to prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following elements:

1. The victim was an elderly person or a disabled adult;
2. Defendant knowingly obtained or used or endeavored to obtain or use the victim’s funds, assets, or property;
3. The defendant did so with the intent to either:
   • temporarily or permanently deprive the victim of the use, benefit, or possession of his or her funds, assets, and property; or
   • benefit someone other than the victim;
4. At the time, the Defendant stood in a position of trust and confidence or had a business relationship with the victim.

Under § 825.101(1), Fla. Stat., the term “business relationship” is defined to mean a relationship between two or more individuals or entities where there exists an oral or written contract or agreement for goods or services.

Under § 825.101(9), Fla. Stat., the term “position of trust and confidence” concerning an elderly person or a disabled adult is defined to include the position of a person who:

• Is a parent, spouse, adult child, or other relatives by blood or marriage of the victim;
• Is a joint tenant or tenant in common with the victim;
• Has a legal or fiduciary relationship with the victim, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator;
• Is a caregiver of the victim; or
• Is any other person who has been entrusted with or has assumed responsibility for the use or management of the elderly person’s or the disabled adult’s property.

Defendant Knows the Victim Lacked the Capacity to Consent

Under Florida Statute § 825.103(1)(b), for a prosecutor with the State Attorney’s Office in Florida to prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following elements:

1. The victim was an elderly person or a disabled adult;
2. Defendant obtained or used, or endeavored to obtain or use, or conspired with another to obtain or use the victim’s property;
3. Defendant obtained or used, or endeavored to obtain or use, or conspired with another to obtain or use the victim’s property;
4. Defendant did so with the intent to either:
   • temporarily or permanently deprive the victim of the use, benefit, or possession of the victim’s property;
   • benefit someone other than the victim;
5. At the time, Defendant knew or reasonably should have known that the elderly or disabled person lacked the capacity to consent.

Under § 825.101(7), Fla. Stat., the term “lacks capacity to consent” involves a condition that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the elderly person’s or disabled adult’s person or property.

Those conditions can include impairment because of:

• mental illness;
• developmental disability;
• organic brain disorder;
• physical illness or disability;
• chronic use of drugs;
• chronic intoxication; or
• short-term memory loss.

Breaching a Fiduciary Duty by a Guardian, Trustee, or Agent with Power of Attorney

Under Florida Statute § 825.103(1)(c), for a prosecutor with the State Attorney’s Office in Florida to prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following elements:

1. The victim was an elderly person or a disabled adult;
2. The Defendant was the victim’s guardian, trustee, agent under a power of attorney;
3. The Defendant breached a fiduciary duty to victim;
4. As a result, there was an “unauthorized appropriation” through a sale or transfer of victim’s property.

Florida’s law against the financial exploitation of an elderly person under § 825.103(1)(c), Fla. Stat., defines the term “trustee” as an individual.

The term “unauthorized appropriation” occurs when:

• the elderly person or disabled adult does not receive the reasonably equivalent financial value in goods or services; or
• the fiduciary, appointed as an agent under power of attorney to act on behalf of the victim, does one of the following:
  • commits fraud in obtaining his or her appointment; or
  • abuses his or her powers; or
  • intentionally mismanages, embezzles, or wastes the assets of the principal or beneficiary; or
  • acts contrary to the principal’s sole benefit or best interest;
• the fiduciary, appointed as a trustee or guardian for the victim, does one of the following:
  • commits fraud in obtaining his or her appointment; or
  • abuses his or her powers; or
  • intentionally mismanages, embezzles, and wastes the ward’s assets or beneficiaries of the trust.

Misuse of Money From Personal or Joint Bank Account

Under Florida Statute § 825.103(1)(d), for a prosecutor with the State Attorney’s Office in Florida to prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following elements:

1. The victim was an elderly person or a disabled adult;
2. The Defendant misappropriated, misused, or transferred without authorization money belonging to the victim from a personal account or joint account created with the intent that only the victim enjoyed all rights, interests, and claims to money deposited in such account or convenience account;
3. The victim placed the funds, owned the funds, and was the sole contributor and payee of the funds before the misappropriation, misuse, or unauthorized transfer.

Under § 655.80, Fla. Stat., the term “Convenience Account” is a deposit account, other than a certificate of deposit, in the name of one individual (principal), in which one or more other individuals have been designated as agents with the right to make deposits to and to withdraw funds from or draw checks on such account.

The designation of agents, the substitution or removal of agents, or any other change in the contractual terms or provisions governing a convenience account may be made only by the principal. All rights, interests, and claims in, to, and in respect of, such deposits and convenience accounts and the additions thereto shall be those of the principal only.

Financial Exploitation by Failing to Use the Victim’s Income for Necessities

Under § 825.103(1)(e), Fla. Stat., for a prosecutor with the State Attorney’s Office in Florida to prove the crime of Exploitation of an Elderly Person or Disabled Adult, the State must prove the following elements:

1. The victim was an elderly person or a disabled adult;
2. The Defendant intentionally or negligently failed to effectively use the victim’s income and assets for the necessities required for the victim’s support and maintenance;
3. At the time, the Defendant was a caregiver or person who stood in a position of trust and confidence with the victim.

Under § 825.101(2), Fla. Stat., the term “caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or disabled adult. The term “caregiver” includes, but is not limited to:

• relatives;
• court-appointed or voluntary guardians;
• adult household members;
• neighbors;
• health care providers; and
• employees and volunteers of facilities.

Under § 825.101(6), Fla. Stat., the term “facility” means any location providing day or residential care or treatment for elderly persons or disabled adults.

The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.

Statutory Inference in a Financial Exploitation Case in Florida

The Standard Jury Instruction 14.9 provides for a statutory inference that can be read to the jury in a financial exploitation case being prosecuted under § 825.103. That special jury instruction provides:

You may, but are not required to, draw an inference of exploitation of the victim, if you find the State has proved beyond a reasonable doubt that:

• The victim was 65 years or older;
• The defendant was a non-relative of victim;
• The victim, while still alive, transferred money or property valued in excess of $10,000 in a single transaction or multiple transactions to the defendant;
• The victim knew the defendant for fewer than two (2) years before the first transfer; and
• The victim did not receive the reasonably equivalent financial value in goods or services.

The standard jury instructions in 14.9 also include the following instruction:

You may not draw an inference of exploitation of the victim if the transfer involved a valid loan, in writing, with definite repayment dates. However, you may draw an inference of exploitation of the victim, even if the transfer involved a valid loan, in writing, with definite repayment dates, if the repayment of the loan was in default, in whole or in part, for more than 65 days.

If the transfer had no definite repayment dates in writing, you may draw an inference of exploitation of the victim regardless of whether the transfer was denoted by the parties as a gift or a loan.

The statutory inferences for a financial exploitation case do not apply to persons in the business of making loans or to bona fide charitable donations to nonprofit organizations that qualify for tax-exempt status under the Internal Revenue Code as provided by § 825.103(2)(b), Fla. Stat.

The jury instruction for the exploitation of an elderly person or disabled adult is found in Standard Jury Instruction 14.9 which was adopted in 2013 [131 So. 3d 755] and amended in 2015.

Definitions Contained in Florida’s Financial Exploitation of the Elderly Statute

Under § 825.101(5), Fla. Stat., the term “endeavor” means to attempt or try. Additionally, the term “obtains or uses” is defined in § 825.101(8) to mean any manner of:

• Taking or exercising control over property; or
• Making any use, disposition, or transfer of property.

Under § 825.101(10), Fla. Stat., the term “property” means anything of value and includes:

• Real property, including things growing on, affixed to, and found in land;
• Tangible or intangible personal property, including rights, privileges, interests, and claims; or
• Services.

Under § 825.101(11), Fla. Stat., “services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes:

• Repairs or improvements to property;
• Professional services;
• Private, public, or governmental communication, transportation, power, water, or sanitation services;
• Lodging accommodations; or
• Admissions to places of exhibition or entertainment.

Obtaining a Future Expectancy of Property under a Will or Trust

In Franke v. State, 188 So. 3d 886, 888-89 (Fla. 4th DCA 2016), the court noted that “it does not seem that obtaining the future expectancy of property under a will or trust falls under the purview of the statute.”

In reaching this conclusion, the court looked at the prior reported cases addressing section 825.103 that all concerned a present transfer of property, not a future expectancy in a will or trust, including:

• Guarscio v. State, 64 So.3d 146, 147 (Fla. 2d DCA 2011) – defendant used the victim’s proceeds from refinancing the mortgage on a house;
• Bernau v. State, 891 So.2d 1229, 1230 (Fla. 2d DCA 2005) – victim endorsed a $847,000 check to the defendant);
• McNarrin v. State, 876 So.2d 1253, 1254 (Fla. 4th DCA 2004) – defendant cashed a $6000 check signed by the victim; and
• Franke v. State, 188 So. 3d 886, 739–40 (Fla. 4th DCA 2016) – defendant closed out one of the victim’s bank accounts in the amount of $38,604.79 at the victim’s request.

Statute of Limitations for Elder Exploitation in Florida

Under Florida Statute 775.15(10), the statute of limitations requires that the prosecution is commenced within five (5) years after an offense is committed in violation of the following:

• Section 825.102 prohibits the abuse or neglect of the elderly or disabled; or
• Section 825.103 prohibits the exploitation of the elderly.

The Creation of Florida’s Senior Protection Team

On March 22, 2020, Attorney General Ashley Moody announced the creation of Florida’s Senior Protection Team. The intra-agency group of experts works together to fight fraud committed against the elderly. Florida’s Senior Protection Team is comprised of members from:

• the Attorney General’s Office of Statewide Prosecution
• Consumer Protection Division
• Medicaid Fraud Control Unit
• Office of Citizen Services.

The Florida Department of Law Enforcement also helps Florida’s Senior Protection Team with investigations for civil, criminal, and health care fraud committed against Floridians who are 60 years of age and older.

Although Florida’s Senior Protection Team deals with elder exploitation issues, those issues are typically handled within the jurisdiction and expertise of local law enforcement or other state agencies, like the Florida Department of Children and Families, the Florida Department of Elder Affairs, or the Department of Financial Services.

Even physicians, nurses, and other health care providers can be accused of exploitation of a disabled adult or elderly person. The Florida Attorney General’s Medicaid Fraud Control Unit oversees many of these investigations. Related charges can include being engaged in a scheme to defraud.

Additional Resources

What is Financial Exploitation of a Vulnerable Adult – Visit the website of the National Adult Protective Services Association (NAPSA), a non-profit 501 (c) (3) organization with members in all fifty states. Use the NAPSA website to find the definition of financial exploitation, resource materials, and a checklist for when to report life-threatening situations involving a senior citizen or adults with disabilities.

Studies on the Exploitation of Elderly People in Florida – Visit the National Institute of Justice (NIJ) website to find information on the financial exploitation of the elderly, including incidents and characteristics of exploitation. The article also discusses an NIJ-funded study that sought to determine the nature and extent of consumer fraud victimization and to identify risk and protective factors for fraud victimization among elderly residents of Florida. Researchers found that nearly 60 percent of the 2,000 survey participants were targeted by at least one fraud attempt during the prior year.

13th Circuit Elder Justice Center in Hillsborough County, FL – The Thirteenth Circuit Elder Justice Center is a court program that helps people who are sixty (60) years old or older who are involved in the Hillsborough County court system because of civil, guardianship, criminal, or family law matter.

Finding a Lawyer in Florida for Exploiting the Elderly Crimes

Find a lawyer for crimes involving exploiting an elderly person or disabled adult. If you have been accused of taking advantage of a vulnerable adult, contact an attorney in Tampa, FL, at the Sammis Law Firm to discuss the case.

We can help you understand the charges being investigated, the best way to present evidence showing you are not guilty, and ways to fight any criminal charges.

Our attorneys represent clients on a variety of white-collar crimes and economic crimes throughout the greater Tampa Bay area. Contact us for a consultation to discuss the case.

Call (813) 250-0500 today.

This article was last updated on Thursday, September 12, 2024.