NEW INJUNCTIVE RELIEF AVAILABLE TO PROTECT VULNERABLE FLORIDIANS
Real Property Probate & Trust Section
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To date, the legal
mechanisms for protecting
vulnerable adults have been
limited to pre-planning in the
form of advanced directives
or no planning in the form of
guardianship proceedings.
E
very day, vulnerable
Floridians fall victim
to abuse, neglect, and
exploitation. Often, the
wrongdoer is in a position of trust
or authority with the vulnerable
adult (VA), a person whose ability
to perform the normal activities
of daily living or provide for her
own care or protection is impaired
because of a physical disability,
cognitive defect, or age. See
§ 415.102(28), Fla. Stat. Frequently,
wrongdoers exploit vulnerable
adults by depriving them of their
assets and using them for the
wrongdoer’s benefit. Entire life
savings can dissipate in a matter
of weeks or days, often before any
meaningful court action or redress
can be taken by the vulnerable adult
or the vulnerable adult’s family.
To date, the legal mechanisms
for protecting vulnerable adults
have been limited to pre-planning
in the form of advanced directives
or no planning in the form of
guardianship proceedings. Effective
July 1, 2018, a new cause of action
exists to combat the abuse, neglect,
and exploitation of Florida’s most
vulnerable population. Specifically,
Section 825.1035, Florida Statutes,
provides vulnerable adults, their
guardians, and petitioners filing for
emergency temporary guardianship,
with an opportunity to obtain
immediate and meaningful relief in
the form of a temporary injunction
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(an asset freeze) of the vulnerable
adult’s property, even without
notice to the respondent. Modeling
the framework for injunctions
against domestic violence, this new
law empowers citizens to proceed
pro se in filing a verified petition
for injunctive relief to protect a
vulnerable adult in imminent
danger of harm or who is already
a victim of exploitation.
Section 825.103(1)(a)-(e) defines
five categories of exploitation: (1)
depriving vulnerable adults of the
use, benefit or possession of their
assets; (2) depriving vulnerable
adults with diminished capacity
of the use, benefit or possession
of their assets when the person
knows or reasonably should know
that the elderly person or disabled
adult lacks the capacity to consent;
(3) breach of fiduciary duty by
the vulnerable adult’s guardian,
trustee, or agent under a power
of attorney; (4) misuse of the
vulnerable adult’s financial
accounts; and (5) intentionally or
negligently failing to provide for the
vulnerable adult’s necessities.
Importantly, the cause of action
does not require that the vulnerable
adult lack capacity. Available relief
includes a temporary injunction (up
to 15 days) prohibiting the
wrongdoer from contacting the
vulnerable adult; awarding
possession of the vulnerable adult’s
dwelling to the vulnerable adult;
freezing lines of credit and financial
accounts, even if such accounts are
jointly held with the respondent;
allowing necessary expenses to be
paid despite the freeze; and directing
law enforcement agencies to take
necessary action to protect the
vulnerable adult. After a hearing,
the court may continue the
injunction in whole or in part. In
order to obtain injunctive relief,
the petitioner must show that: an
immediate and present danger
of exploitation exists; there is a
likelihood of irreparable harm and
no other adequate remedy at law;
the case is likely to succeed on the
merits; the threatened injury to
the vulnerable adult outweighs the
harm to the respondent; the relief
will not disserve the public interest;
and the injunction provides for
the vulnerable adult’s physical or
financial safety.
See § 825.1035
(a)(1)(a)-(f),
Fla. Stat.
Author:
Robert S. Walton
– Law Offices
of Robert S.
Walton, PL
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