Florida Probate Litigation Lawyer Blog
Families who discover that an elderly parent was financially exploited often assume that their only recourse is to call the police and hope for a criminal prosecution of the wrongdoer. While a criminal prosecution may be worth exploring, it may not place the victim or their family in the same position they were in prior to the exploitation. Florida law provides a separate civil cause of action for the exploitation of a vulnerable adult to help victims and family members recover what was wrongfully taken.
The claim comes from section 415.1111 of the Florida Statutes, part of Florida’s Adult Protective Services Act. The statute provides that a vulnerable adult who has been abused, neglected, or exploited has a cause of action against the perpetrator, and may recover both actual AND punitive damages. Further, the statute goes on to say that a party who prevails may be entitled to recover their reasonable attorney’s fees and costs, and that these remedies exist in addition to whatever other legal remedies the vulnerable may also have. In other words, this claim can be brought alongside other causes of action such as breach of fiduciary duty, undue influence, or civil theft, rather than in lieu of them.
Two definitions are important considerations under this statute. A vulnerable adult, under the statute, is a person 18 or older whose ability to carry out the ordinary activities of daily living, or to provide for his or her own care or protection, is impaired. That impairment can come from a mental, emotional, sensory, long-term physical, or developmental condition, from brain damage, or simply from the infirmities of aging. Exploitation generally involves someone who occupies a position of trust and confidence with that adult and who knowingly obtains or uses the adult’s money or property in a way that deprives the adult of it. Whether a particular person meets these definitions is fact-specific, and can often be the main dispute in these cases.
What makes this statute especially useful in a probate context is who is allowed to bring the claim. The action can be brought by the vulnerable adult, by a guardian, by a person or organization acting on the adult’s behalf with proper consent, or by the personal representative of a deceased victim’s estate. That last category matters enormously, because the statute expressly allows the personal representative to sue without regard to whether the exploitation had anything to do with the cause of death. A family does not have to prove that the wrongdoing killed the decedent. They only have to prove the exploitation occurred.
Consider a common scenario. An elderly woman in Miami spends her final two years in declining health, and a nephew who has been helping her with errands gradually takes over her checkbook, adds himself to her accounts, and moves a significant sum into his own name. She dies of unrelated causes. The criminal system may or may not take up the case, and even a conviction may not restore the money. But the personal representative of her estate can bring a civil action under section 415.1111, seek to recover what was taken, and ask for punitive damages and attorney’s fees on top of it, all without any need to connect the nephew’s conduct to her death.
Financial exploitation of the elderly is an unfortunate reality, and it often becomes known only after the person who was harmed has passed away. Florida law gives those families a direct civil remedy, which the personal representative of the deceased’s estate can pursue. If you believe a loved one was financially exploited, the attorneys at Chepenik Trushin LLP are ready, willing, and able to assist you. Please give us a call today at 305-981-8889.
