Elder Abuse Neglect and Financial Exploitation

Florida Elder Abuse and Financial Exploitation Law Guide

Florida Statutes Chapter 415 governs the protection of vulnerable adults in Florida, including the definitions of abuse, neglect, and financial exploitation, the mandatory reporting requirements, the investigative process of the Department of Children and Families, and the civil remedies available to victims and their families. The summary below covers the sections most relevant to Florida elder law practice and families concerned about the safety and financial security of a loved one. This guide is not exhaustive and some sections have been omitted. It is meant for informational purposes only, as the law and its interpretation may have changed since this article was written. For guidance on protecting a vulnerable loved one through advance legal planning, visit our page on Florida guardianship attorney services and our guide to Florida power of attorney planning.

Part I General Provisions

What Are the Key Definitions Under Florida's Adult Protective Services Act?

(Selected definitions most relevant to elder law and vulnerable adult protection. Some subsections have been omitted.)

Abuse means any willful act or threatened act by a caregiver or another person that causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions.

Adult Protective Services means services provided to vulnerable adults who have been abused, neglected, or exploited, or who are at risk of such treatment, for the purpose of preventing further abuse, neglect, or exploitation.

Caregiver means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis, whether or not that person receives compensation. This includes a relative, household member, neighbor, employee of a facility, or any person who provides in-home services.

Department means the Department of Children and Families.

Exploitation means a person who stands in a position of trust and confidence with a vulnerable adult, or who has a business relationship with a vulnerable adult, and who knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a vulnerable adult's funds, assets, or property with the intent to temporarily or permanently deprive the vulnerable adult of the use, benefit, or possession of the funds, assets, or property. It also includes any act that deprives a vulnerable adult of the rightful use or possession of their funds, assets, or property.

Financial exploitation specifically includes the following.

• The wrongful or unauthorized taking, withholding, appropriation, or use of money, assets, or property
• Any act or omission taken by a person through the use of undue influence, coercion, harassment, duress, deception, false representation, or false pretense to obtain consent of a vulnerable adult to perform a financial transaction

Neglect means the failure or omission on the part of a caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of a vulnerable adult, including but not limited to food, clothing, medicine, shelter, supervision, and medical services. Neglect may be either intentional or the result of the caregiver's inability to provide the required care.

Self-neglect means a vulnerable adult's inability, due to physical or mental impairment or diminished capacity, to perform essential self-care tasks, including obtaining essential food, clothing, shelter, and medical care, without the help of others.

Vulnerable Adult means a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for their 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.

415.1034 Mandatory Reporting of Abuse, Neglect, or Exploitation

(Selected subsections. Some have been omitted.)

Any person who knows or reasonably suspects that a vulnerable adult has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the Florida Abuse Hotline at 1-800-962-2873. Reports may be made anonymously.

The following persons are mandatory reporters and may face criminal liability for failing to report known or suspected abuse, neglect, or exploitation.

• Physicians, osteopathic physicians, medical examiners, chiropractic physicians, nurses, and paramedics
• Health professionals and mental health professionals
• Pharmacists
• Employees and agents of hospitals, nursing homes, assisted living facilities, and adult day care centers
• Social workers and case managers
• Financial institution employees who are authorized to conduct financial transactions for a vulnerable adult
• Guardians and guardian advocates
• Law enforcement officers
• Teachers and school personnel

415.1035 Immunity From Liability

Any person who makes a report of elder abuse, neglect, or exploitation or who cooperates with a subsequent investigation is immune from any civil or criminal liability for making that report, as long as the report was made in good faith.

415.104 Protective Investigations

(Selected subsections. Some have been omitted.)

Upon receiving a report of abuse, neglect, or exploitation, the Department of Children and Families must conduct a protective investigation. When the report indicates an immediate or impending danger, the department must begin the investigation within 24 hours. The department must make a determination as to whether abuse, neglect, or exploitation occurred and assess the need for protective services. The department must document its findings and must advise the vulnerable adult of the available services and legal remedies.

415.1045 Abrogation of Privileged Communications

The privileged quality of communications between certain professionals and their clients does not apply to reports made under Chapter 415. However, this does not apply to communications between an attorney and their client.

Part II Protective Services and Intervention

415.105 Provision of Protective Services With Consent

(Selected subsections. Some have been omitted.)

If a vulnerable adult consents to receive protective services, the department shall provide or arrange for the provision of those services, which may include counseling, medical care, mental health services, shelter, and legal assistance.

415.1051 Protective Services Intervention Without Consent

(Selected subsections. Some have been omitted.)

If a vulnerable adult who is in need of protective services refuses them, the department may petition the court for an order authorizing the provision of those services. If the court finds there is a reasonable basis to believe that the vulnerable adult is suffering from abuse, neglect, or exploitation and that no less restrictive alternative will adequately protect the vulnerable adult, the court may order protective services.

In an emergency, the court may issue an ex parte order authorizing protective placement or medical treatment. Emergency orders may authorize any of the following.

• Placement of the vulnerable adult in a medical facility or other setting
• Provision of emergency medical care
• Appointment of an emergency guardian for the person and property
• Restriction or removal of the alleged abuser from access to the vulnerable adult
• Restriction on access to the vulnerable adult's finances and assets

415.107 Confidentiality of Records

All records held by the department concerning abuse, neglect, or exploitation of a vulnerable adult are confidential and exempt from public records law, except as provided by law for specific purposes including judicial proceedings, law enforcement investigations, and authorized research.

415.1071 Voluntary Protective Services for Self-Neglecting Adults

If a vulnerable adult is determined to be self-neglecting and refuses services, the department may seek court authorization to provide protective services if the adult is found to lack the capacity to consent.

Part III Financial Institutions and Exploitation

415.1034(2) Financial Institution Reporting Obligations

Employees of financial institutions who are authorized to conduct financial transactions for a vulnerable adult are mandatory reporters. Financial institutions are also authorized to voluntarily report suspected financial exploitation of a vulnerable adult to law enforcement, the department, or adult protective services, even if the transaction was not completed.

Protection Against Financial Exploitation

Florida law recognizes that financial exploitation of a vulnerable adult often occurs through a trusted caregiver, family member, or agent under a power of attorney. Warning signs of financial exploitation include the following.

• Sudden changes in bank account activity or large unexplained withdrawals
• Changes to deeds, wills, trusts, or beneficiary designations that the vulnerable adult appears not to understand
• New or sudden relationships with individuals who isolate the vulnerable adult from family
• Unpaid bills, lack of food, or declining living conditions despite adequate financial resources
• Addition of new names to bank accounts or property titles
• Forged signatures on checks or legal documents

If your family member is being financially exploited, particularly through misuse of a power of attorney, read our guide on Florida power of attorney planning and speak with a Florida elder law attorney as soon as possible.

Part IV Civil Remedies

415.1111 Civil Cause of Action

(Selected subsections. Some have been omitted.)

A vulnerable adult who has been abused, neglected, or exploited has a cause of action against any perpetrator and may recover the following.

• Actual damages
• Punitive damages
• Attorney fees and costs incurred in bringing the action

A guardian, guardian advocate, or personal representative may bring the action on behalf of an incapacitated or deceased vulnerable adult. The action must be commenced within the applicable statute of limitations for the underlying cause of action. The existence of a criminal proceeding arising from the same incident does not preclude a civil action for damages. This civil remedy is one of the most powerful tools available to families seeking to recover assets that were wrongfully taken from a vulnerable loved one.

415.113 Criminal Penalties

Abuse, neglect, or exploitation of a vulnerable adult may also result in criminal prosecution under Florida Statutes Chapter 825. A caregiver who knowingly or willfully abuses a vulnerable adult commits a felony of the third degree. If the abuse causes great bodily harm, it is a felony of the first degree. Exploitation of a vulnerable adult may be prosecuted as a felony depending on the value of the property taken.

Work With a Florida Elder Law Attorney

Protecting a vulnerable adult from abuse, neglect, and financial exploitation requires both immediate action and long-term planning. When exploitation has already occurred, Florida law provides meaningful civil remedies to recover assets and hold perpetrators accountable. When exploitation has not yet occurred, proper legal planning through a durable power of attorney with carefully limited superpower provisions, a well-drafted trust, and properly designated beneficiaries can prevent exploitation before it begins. The Florida elder law and estate planning attorneys at Elder Needs Law help families at every stage, from protective planning to litigation. For a full overview of how to protect a vulnerable loved one through advance planning, read our guide on essential documents for Medicaid and incapacity planning in Florida.