Chat with us, powered by LiveChat


Crimes Against the Elderly

As I’m sure you know, Florida is an extremely popular place for people to spend all or part of their retirement. As such, the Florida legislature has passed many laws to specially protect the rights of the elderly, who may be more vulnerable to fraud and abuse.  In fact, most criminal statues explicitly make a crime against an elderly person an aggravating factor which raises the severity of the charge by at least one degree.  For example, misdemeanor batteries become third-degree felonies if the alleged victim is over 65 years of age and aggravated assaults become second-degree felonies from third-degree felonies if the alleged victim is over 65 years of age.  In addition to using age as an aggravating factor, there are a few laws that have been explicitly designed to protect the rights of the elderly.  One such criminal offense is “Exploitation of an Elderly or Disabled Person”, Florida Statute 825.103.  In broad strokes, the statute makes it an offense to knowingly misappropriate the property of an elderly person if the defendant has a special relationship with the elderly person (such as an accountant or caretaker) or if the defendant is a stranger, but knew or should have known that the elderly person is unable to consent.  The latter offense is especially troubling because as an elderly person ages and declines, it becomes very difficult to determine at exactly which point the elderly person became unable to consent.  Prosecutors and juries often look at the elderly person right now and are not able to visualize how the elderly person appeared at the time of the underlying transactions.  And this is why if you are charged with an offense such as this you need to reach out to me immediately so that we can begin preparing your case and defending your rights!

 

Exploitation of an Elderly or Disabled Person – Fla. Stat. 825.103

  1. “Exploitation of an elderly person or disabled adult” means:
    1. Knowingly obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
      1. Stands in a position of trust and confidence with the elderly person or disabled adult; or
      2. Has a business relationship with the elderly person or disabled adult;
    2. Obtaining or using, endeavoring to obtain or use, or conspiring 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 the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent;
    3. Breach of fiduciary duty to an elderly person or disabled adult by the person’s guardian, a trustee who is an individual, or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property. An unauthorized appropriation under this paragraph occurs when the elderly person or disabled adult does not receive the reasonably equivalent financial value in goods or services, or when the fiduciary violates any of these duties:
      1. For agents appointed under chapter 709:
        1. Committing fraud in obtaining their appointments;
        2. Abusing their powers;
        3. Wasting, embezzling, or intentionally mismanaging the assets of the principal or beneficiary; or
        4. Acting contrary to the principal’s sole benefit or best interest; or
      2. For guardians and trustees who are individuals and who are appointed under chapter 736 or chapter 744:
        1. Committing fraud in obtaining their appointments;
        2. Abusing their powers; or
        3. Wasting, embezzling, or intentionally mismanaging the assets of the ward or beneficiary of the trust;
      3. Misappropriating, misusing, or transferring without authorization money belonging to an elderly person or disabled adult from an account in which the elderly person or disabled adult placed the funds, owned the funds, and was the sole contributor or payee of the funds before the misappropriation, misuse, or unauthorized transfer. This paragraph only applies to the following types of accounts:
        1. Personal accounts;
        2. Joint accounts created with the intent that only the elderly person or disabled adult enjoys all rights, interests, and claims to money deposited into such account; or
  • Convenience accounts created in accordance with s. 655.80; or
  1. Intentionally or negligently failing to effectively use an elderly person’s or disabled adult’s income and assets for the necessities required for that person’s support and maintenance, by a caregiver or a person who stands in a position of trust and confidence with the elderly person or disabled adult.
  1. Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transaction or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation.
    1. This subsection applies regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates. However, if repayment of any such loan is in default, in whole or in part, for more than 65 days, the presumption of this subsection applies.
    2. This subsection does not apply to:
      1. Persons who are in the business of making loans.
      2. Bona fide charitable donations to nonprofit organizations that qualify for tax exempt status under the Internal Revenue Code.
    3. In a criminal case to which this subsection applies, if the trial is by jury, jurors shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection. The presumption of this subsection imposes no burden of proof on the defendant.
    1. If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $50,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    2. If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $10,000 or more, but less than $50,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
    3. If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $10,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
  2. If a person is charged with financial exploitation of an elderly person or disabled adult that involves the taking of or loss of property valued at more than $5,000 and property belonging to a victim is seized from the defendant pursuant to a search warrant, the court shall hold an evidentiary hearing and determine, by a preponderance of the evidence, whether the defendant unlawfully obtained the victim’s property. If the court finds that the property was unlawfully obtained, the court may order it returned to the victim for restitution purposes before trial on the charge. This determination is inadmissible in evidence at trial on the charge and does not give rise to any inference that the defendant has committed an offense under this section.

 

Jury Instruction 14.9

customer service software