Elder Abuse and Exploitation

Florida Elder Law Attorneys Modernizing Laws and Combatting Exploitation

By Twyla Sketchley, JD, BCS

Elder law attorneys in Florida are taking the lead to combat elder exploitation and making their state safer for seniors.

Legend has it that when bank robber Willie Sutton was asked why he robbed banks, he said it was because that was where the money was.1 This is true for elder exploitation or financial abuse in the United States. Elders are easy targets because of age or disability and usually have steady income like Social Security or retirement, decent credit, and at least some assets. Unlike Willie Sutton who had to use a gun to rob banks, those who exploit or financially abuse elders can commit their crimes with “charm and personality.”2 And, the damages from elder exploitation are not covered by insurance or the Federal Deposit Insurance Corporation.

Elder exploitation, also known as financial abuse, is a widespread problem in the United States, according to the Consumer Financial Protection Bureau (CFPB).3 Elder exploitation includes everything from an adult child taking a parent’s income to support a substance abuse problem, to a fiduciary misusing an elder’s assets, to unscrupulous “financial planners” targeting elders with inappropriate financial products. It has far-reaching effects on an elder, the elder’s family, and the community. These consequences include the overwhelming costs to state and local governments for investigation and prosecution of elder exploitation and an increased reliance on public services by victims.4

Rapidly Aging Population and Increasing Incidence of Abuse
Elder exploitation in the United States will only grow as the population rapidly ages. According to the United States Census Bureau, by 2030 one in five Americans will be age 65 and older, outnumbering children for the first time in history.5 By 2035, 78 million people will be 65 years old or older.6 According to the Administration on Aging, 35 percent of individuals over age 65 report some form of disability, including cognitive impairments, hearing or sight deficits, or dependence on others for care.7 As individuals age, so does their likelihood of impairment. Age and impairment make elders more susceptible to elder exploitation.

The costs of elder exploitation range between $2.9 billion and $36.5 billion a year.8 The average costs to individual victims varies depending on their age. Individuals age 70–79 suffer the largest individual losses, averaging $45,300 per victim.9 Individuals 80 years old and older suffer the second largest loss per person at $39,200 per person.10

Despite the staggering costs, elder exploitation, like other forms of elder abuse, is under reported.11 There are various factors contributing to the under reporting of elder exploitation. These include cognitive impairment, dependence, isolation, and fear. Despite all we know about the consequences of elder abuse and exploitation, there is no uniform approach to reporting, investigating, protecting or prosecuting. Each state has its own laws and rules regarding who is a mandatory reporter, the population considered to be elderly or vulnerable, and the consequences of abusing or exploiting an elder.12 In many states, it is even difficult to figure out who and when to call when elder abuse or exploitation is suspected.13 This lack of uniformity also contributes to the severe under reporting of elder abuse and exploitation.

What Florida Is Doing to Combat Elder Abuse
Facing the reality of elder exploitation and armed with the special understanding elder law attorneys have of this problem, elder law attorneys can take the lead in combatting it. Florida is a perfect example of elder law attorneys using their knowledge to make change. In the past decade, Florida elder law attorneys have transformed the discussion of elder abuse and made their state safer for seniors. They have modernized criminal and civil laws to combat exploitation and worked cooperatively with state government to make hundreds of small changes to ensure coordination of efforts and care.

The first significant change occurred in 2009, when the legislature made sweeping changes to Florida’s criminal exploitation statute. To achieve this, Florida elder law attorneys created a task force of stakeholders, including prosecutors, the purpose of which was to modernize the criminal definition of exploitation and address a growing number of schemes targeting elders. Based on the recommendations of that task force, the following changes were made to criminal exploitation:

1. The requirement that a victim lack capacity for certain predatory actions to be considered criminal was removed;

2. Breaches of certain fiduciary duties by agents, trustees, and guardians were included in the definition of exploitation;

3. Removal of funds from a joint bank account by an account holder whose ownership is for convenience only could be exploitation;

4. Failure to use the elder’s assets or income to pay for their necessities was added to the definition of exploitation; and

5. Under certain circumstances, a finder of fact is permitted to presume specific actions constitute exploitation.14

These changes also gave victims more ability to recover civilly from exploiters.15

In 2013, after numerous incidents of exploitation and harm caused by the unlicensed practice of law (UPL) of non-attorney Medicaid planners, Florida elder law attorneys asked the Florida Bar for an ethics opinion on what constituted UPL. In response, the Florida Bar investigated the issue, sought written comments, and held a public hearing on the issue. Elder law attorneys from across the state submitted comments, provided examples of cases of harm to elders, shared stories of non-attorney Medicaid planners with histories of preying on elders, and helped clients testify regarding their experiences. This effort resulted in the Florida Supreme Court issuing The Fla. Bar re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers, which defined activities considered UPL in Florida.16

The most recent change occurred in 2018, when Florida elder law attorneys worked to pass legislation creating an injunction for the protection against exploitation of vulnerable adults.17 This injunction is modelled after domestic violence injunctions. It allows an elder or certain individuals acting on behalf of elders to file for an ex parte injunction that can:

1. freeze assets belonging to an elder to prevent them from being taken by an exploiter, even if those assets have been transferred by the exploiter into the exploiter’s account;

2. prevent an exploiter from having contact with the victim;

3. direct law enforcement to assist an elder in returning to their residence;

4. remove an exploiter from the elder’s residence;

5. authorize the payment of an elder’s bills from any frozen account; and

6. be made permanent following an evidentiary hearing.

Since this statute became effective in July 2018, elder law attorneys, clerks of court, and elders have been utilizing these injunctions to prevent elders from being robbed of their life savings by family members, health care workers, and strangers.

There are still gaps in Florida’s protection of elders. For example, inducing an elder to make you a beneficiary of their estate or trust is not exploitation18 and those who have abused or exploited an elder can still inherit from that elder despite the significant harm their actions cause. Florida elder law attorneys are currently working on proposed legislation to disincentivize abuse and exploitation by severely limiting or prohibiting exploiters and abusers from inheriting from their victims. This legislation is modeled after Florida’s “slayer statute”19 that prohibits a killer from inheriting from a victim. Florida elder law attorneys hope this proposed legislation will pass during the 2020 legislative session.

As a member of leadership in the Academy of Florida Elder Law Attorneys,20 the state chapter of NAELA, and the Florida Bar Elder Law Section,21 I am privileged to be a part of a dedicated, passionate group of elder law attorneys22 working to modernize protections against the exploitation of Florida’s aging population. I have witnessed how these changes are improving the lives of Florida’s aging population and preventing elders from being robbed of their life savings.

Citations
1 Wikipedia, Willie Sutton (William Frances Sutton, Jr.), https://en.wikipedia.org/wiki/Willie_Sutton.

About the Author
Twyla Sketchley, JD, BCS, is this month’s featured member. She is a Florida Bar Board Certified Elder Law Attorney. She is licensed to practice law in Montana and Florida. She founded The Sketchley Law Firm, PA, in 2002. She is of counsel to the Bryan Law Firm, PC, in Bozeman, Montana. In 2016, she founded The Sketchley Method (https://thesketchleymethod.com), a leading resource on the prevention of the maltreatment of elders and people with disabilities.