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Florida DCF Investigations into the Exploitation of the Elderly

An elderly woman talking with her nurse

An elderly woman talking with her nurse

In Florida, especially in South and Central Florida, the elderly have a dense population throughout our communities. We often read in the local paper or watch the nightly news with astonishment, when the coverage is about a story regarding an elderly person being swindled out of money, real property like a home or being duped out of home improvements, by an unscrupulous repair man or company. Florida General Statute 825.103, specifically articulates the legislature’s intent in attempting to keep the elderly safe from different forms of exploitation.

In Florida,  a person is guilty of the exploitation of an elderly person or disabled adult when: (1) that person either stands in a position of trust and confidence, or has a business relationship, with the elderly person or disabled adult and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive that person of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult; (2) he or she obtains or uses, endeavors to obtain or use, or conspires with another to obtain or use an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive that person of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, and he or she knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent; or (3) he or she, acting as the guardian or agent under a power of attorney, breaches a fiduciary duty to the elderly person or disabled adult and such breach results in an unauthorized appropriation, sale, or transfer of property.

“Position of trust and confidence” means the position of a person who:

(1) Is a parent, spouse, adult child, or other relative by blood or marriage of the elderly person or disabled adult;

(2) Is a joint tenant or tenant in common with the elderly person or disabled adult;

(3) Has a legal or fiduciary relationship with the elderly person or disabled adult, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator;

(4) Is a caregiver of the elderly person or disabled adult; or

(5) Is any other person who has been entrusted with or has assumed responsibility for the use or management of the elderly person’s or disabled adult’s funds, assets, or property.

A “business relationship” is defined as a relationship between two or more individuals or entities where there exists an oral or written contract or agreement for goods or services.

The term “lacks capacity to consent” means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, 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.

Intent is a necessary element of the offense of exploitation of an elderly person or disabled adult. Therefore, to be found guilty, the State must prove that the person intended to deceive or intimidate the elderly person or disabled adult. Evidence that the transaction is suspicious is not enough. Evidence has been found to be insufficient to prove exploitation where the defendant did not deposit any of the victim’s money into his or her own bank account and did not suddenly acquire property.

In Florida, when there is suspected exploitation of the elderly, Department of Children of Families will investigate the allegations, along with law enforcement officers. Under Florida law, DCF has a broad range of power to investigate and be the arm of prosecution in all matters that exploit the elderly. Many times, the DCF workers are under staffed, under trained and perform their investigation in a haphazard way, which may lead to false allegations against an innocent family member, friend or neighbor who is accused of exploitation of their elderly loved one. Many times the same haphazard investigations, by DCF, lead to those who have exploited the elderly citizen from ever being charged with a criminal offense.

Elderly people are many times treated like second rate citizens, because DCF and Law Enforcement Officers have a preconceived notion that because someone is “older” and not in their “prime” they are fragile in both their physical and mental health. This preconceived notion of fragile concept, many times actually places the elderly person in a position, where they are interrogated by DCF workers and Law enforcement officer for living their life, the way they choose too.

Many elderly people complain that their children, the heirs to the elderly person’s estate, called DCF on them because “I have a younger girlfriend” or “I have a younger boyfriend.” In these instances, the children of the elderly family member are holding the purse strings of the elderly person’s wealth, so that they may inherit more at death and therefore in the process reducing the quality of life of their elderly relative in companionship, friendship, love and even intimate encounters. These types of allegations always bring an investigation of “exploitation of the elderly” by DCF and Local Law enforcement.

The main focus in the investigation of exploitation of the elderly in Florida, regarding a younger suitor with and “older” wealthier person, always goes to mental capacity. The statute specifically defines the term lacks capacity to consent to mean an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, 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.

As a practicing criminal, family and DCF attorney, I am constantly defending both the elderly person from their “wanting” family and DCF and the younger “companion, friend or lover” from DCF and law enforcement or both. The steps one can take to help prevent the long drawn out investigation of the elderly person from DCF and law enforcement in these types of “exploitation of elderly” cases are as follows: (i) have a mental health evaluation by a medical provider to show the capacity to enter into contracts, give gifts and fall in love; (ii) write a will and have your estate planned  and reviewed by a lawyer on a yearly basis; (iii) have a health care directory and power of attorney; and lastly, (iv) if you are being investigated or are the target of the investigation, contact an experienced Criminal, DCF and Family lawyer because he can assist you or your companion, friend or lover in the investigation with DCF and law enforcement.

Palm Beach Criminal Lawyer, Andrew D. Stine, has represented the elderly, the accused and both when mental capacity is not at issue in their prospective investigations, arrest and prosecutions of exploitation of the elderly. All people who are vulnerable and lack capacity must be protected, but those who have their normal faculties should also spend their money, riches, and wealth the way they see fit and not the way their waiting children would like. Elderly people have a right to life, liberty and the pursuit of happiness without the intermeddling of their heirs, DCF and law enforcement officers and should be able to enjoy their golden years I without reprisal for their lifestyles.  Palm Beach Attorney, Andrew D. Stine, will protect your rights, so you may enjoy your life the way “you” see fit and not the way your children or the government may want you to live your life. Hire Stine or Do the Time.

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