Florida has determined to fight abuse and exploitation by enacting a specific civil cause of action for exploitation, but the Florida action applies to the exploitation of “vulnerable adults.” As a result, the attorney must be prepared to offer testimony on both prongs of the action and prove that his client is both a “vulnerable adult” and a victim of “exploitation.”
A “vulnerable adult” is defined as 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 mental, emotional, long-term physical, or developmental disability or dysfunctioning, or brain damage, or the infirmities of aging.”
“Exploitation” is defined as obtaining or using, or endeavoring to obtain or use the vulnerable adult’s funds, assets or property for the benefit of someone other than the vulnerable adult by: 1) a person “who stands in a position of trust and confidence with a vulnerable adult,” or 2) by a person who “knows or should know that the vulnerable adult lacks the capacity to consent.
Therefore, in order to take advantage of Florida’s direct civil cause of action, the attorney must first determine whether he representing a “vulnerable adult.” This requires a thorough investigation of the client’s capacity and should begin with an investigation of any previous assessment conducted by health care professionals. If no assessment has yet been performed, and the attorney believes that capacity issues exist, it will be necessary to obtain a professional assessment and be prepared to present evidence through expert testimony that the client is a
“vulnerable adult” as defined by Florida law. In addition, the testimony of family members, care givers, and friends would provide important testimony on this issue.
The next step is to determine if the facts constitute “exploitation” as defined under the statute. Here, the attorney must carefully analyze the relationship that existed between the client and the defendant to determine if a confidential or trusted relationship existed. If a confidential or trusted relationship existed, such as in a fiduciary relationship under a trust, power of attorney or guardianship, the remaining issue would be whether the funds were used for the benefit of someone other than the vulnerable adult. If no confidential or trusted relationship existed, an action may nevertheless be brought under the direct statute if the attorney can prove that the defendant knew or should have known that the client lacked the capacity to consent and thereafter used the funds for the benefit of someone other than the vulnerable adult. Lay testimony, as well as expert testimony from health care professionals, would be appropriate in establishing the lack of capacity to consent, and just as importantly, the red flags of incapacity that should have been evident even to a lay person.
The final question to be answered by the attorney before filing suit is who can bring the action on behalf of the vulnerable adult. Interestingly, the Florida statute provides that an action on behalf of a vulnerable adult who has been abused, neglected or exploited may be brought by the vulnerable adult, the guardian of the adult or a person or organization acting on behalf of the adult with consent. The fact that the cause of action may be brought by the vulnerable adult himself indicates a recognition that the capacity of the vulnerable adult does not have to be so diminished as to first require the appointment of a Guardian.
Additionally, allowing the action to be brought by a person or organization “acting on behalf of the vulnerable adult with the consent of that person,” presents an interesting issue if the attorney is attempting to establish exploitation by proving that the defendant knew or should have known that the vulnerable adult lacked the capacity to consent.
Nevertheless, it is clear that the civil trial attorney in Florida is not required to first establish a guardianship prior to bringing an action under the statute.
With respect to damages, the Florida statute provides that a vulnerable adult who has been abused, neglected or exploited may recover both actual and punitive damages “for any deprivation of or infringement on the rights of a vulnerable adult.” Like California, the prevailing party may be entitled to recover “reasonable attorney’s fees, costs of the action, and damages.”
As discussed above, allowing recovery of attorney fees is an important element of damages for elders who would not be made whole even in victory if contingent attorney fees are taken from the recovery.
In addition to the civil remedies expressed above, Florida statutes also provide elders with civil remedies for financial exploitation which also constitutes a criminal violation. Under this provision, where it is proven by clear and convincing evidence that the elder is a victim of “theft, robbery and crimes related thereto,” a cause of action with damages of “three-fold the actual damages sustained, together with reasonable attorney’s fees and court costs,” is available.
Is it important to note that the definition of “exploitation” within Florida’s civil statute, and the definition of “theft” under its criminal statute, are strikingly similar, yet with one critical difference. While within the definition of each, the offender “obtains or uses or endeavors to obtain or use the property of another for the benefit of someone other than the victim,” in the criminal statute, there is no requirement that the victim be a “vulnerable adult”, so an individual over the age of 65, who would otherwise not be defined as a “vulnerable adult” under the civil statute, may bring a civil action for exploitation under the criminal statute, as long as the facts otherwise meet the definition of “theft.”
The Florida attorney, then, is provided with options in presenting causes of action for the financial exploitation of individuals 65 years of age and older regardless of capacity. Florida also provides that in civil actions in which a party is over the age of 65, he may move the court to advance the trial on the docket. Like California, creating a direct civil cause of action for financial exploitation, and providing civil remedies for criminal violations, Florida has taken important steps in the fight against elder abuse, and has presented the civil trial attorney with effective tools in responding to financial abuse.
This information came from “Litigation Responses to Financial Exploitation” written by Brian H. Fant.
Securities Lawyer, Lars K. Soreide, of Soreide Law Group, PLLC, represents clients nationwide in arbitrations before FINRA. Call to speak to an attorney regarding your investment losses. For a free consultation on how to potentially recover those losses call: 888-760-6552, or you may visit our website at: https://www.securitieslawyer.com.