PBCBA BAR BULLETINS pbcba_bulletin_april 2018 - Page 17

PROBATE C o r n e r Injunction For Protection Against Exploitation DAVID M. GARTEN Watch out exploiters, there is a new statute in town to protect the elderly - §825.1035, F.S.! This statute creates a cause of action for an injunction for protection against the exploitation of a vulnerable adult. Sec. 825.1036, F.S. pertains to enforcement of the injunction. If approved by the Governor, these statutes will take effect on July 1, 2018. EX PARTE TEMPORARY INJUNCTION: Pursuant to §825.1035(5), the court may grant an ex parte temporary injunction for the following relief: a. Restraining the respondent [exploiter] from committing any acts of exploitation against the vulnerable adult; b. Awarding to the vulnerable adult the temporary exclusive use and possession of the dwelling that the vulnerable adult and the respondent share, or barring the respondent from the residence of the vulnerable adult; c. Freezing any assets of the vulnerable adult in any depository or financial institution whether titled solely in the vulnerable adult's name, solely in the respondent's name, jointly with the respondent, in guardianship, in trust, or in a Totten trust; d. Freezing any line of credit of the vulnerable adult at any depository or financial institution whether listed solely in the vulnerable adult's name or jointly with the respondent; e. Prohibiting the respondent from having any direct or indirect contact with the vulnerable adult; or f. Providing any injunctions or directives to law enforcement agencies. WHO MAY FILE? The cause of action for an injunction may be sought by: a. A vulnerable adult in imminent danger of being exploited; b. The guardian of a vulnerable adult in imminent danger of being exploited; c. A person or organization acting on behalf of the vulnerable adult with the consent of the vulnerable adult or his or her guardian; or d. A person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian with respect to the vulnerable adult. POLICE ASSISTANCE: “When an injunction for protection against the exploitation of a vulnerable adult is issued, if the petitioner requests that a law enforcement agency assist the vulnerable adult, the court may order that an officer from the appropriate FINAL HEARING: At the final hearing, the law enforcement agency accompany the court may grant such relief as the court vulnerable adult and assist in the service deems proper, including, but need not be or execution of the injunction, including limited to, injunctions doing any of the returning possession of a dwelling or following: residence to the vulnerable adult.” Refer to §825.1035(10)(a)3, F.S. a. Continuing the temporary injunction in part or in whole; ENFORCEMENT [§825.1036]: “The court b. Restraining the respondent from may enforce a violation of an injunction committing any acts of exploitation; for protection against the exploitation of a c. Awarding to the vulnerable adult the vulnerable adult through a civil or criminal exclusive use and possession of the dwelling contempt proceeding, and the state attorney that the vulnerable adult and the respondent may prosecute it as a criminal violation share or excluding the respondent from the under s.825.1036 [Emphasis added].” “If the residence of the vulnerable adult, if the respondent is arrested by a law enforcement court finds that the vulnerable adult is able officer under s.901.15(6) or for a violation of to reside safely without the respondent; s.825.1036, the respondent must be held in d. Ordering the respondent to participate custody until he or she is brought before the in treatment, intervention, or counseling court, which must occur as expeditiously services to be paid for by the respondent; as possible, for the purpose of enforcing e. Directing that assets under temporary the injunction for protection against the freeze by injunction be returned to the exploitation of a vulnerable adult and for vulnerable adult, or directing that those admittance to bail in accordance with assets remain frozen until ownership chapter and the applicable rules of criminal can be determined; and directing that the procedure, pending a hearing.” Refer to temporary freeze on any line of credit be §825.1035(11), F.S. lifted; f. Where the court has found that the WRONGFUL FILING: “Actual damages may respondent ha engaged in exploitation of be assessed in a proceeding under this the vulnerable adult, entering a final cost section if the court finds that the petition judgment against the respondent and in was without substantial fact or legal favor of the petitioner for all costs, and support.” Refer to §825.1035(12), F.S. entering a final cost judgment against the respondent and in favor of the clerk of the circuit court for all clerk's filing fees 1 As of 2/19/18, these statutes were still under re- and service charges that were waived by view by the House [HB 1059 (2018)] and Senate [SB 1562 (2018)]. This article merely summarizes cer- operation of this section; or tain aspects of the current drafts of §§825.1035 and g. Ordering such other relief as the court 825.1036, F.S. and is not meant to be a detailed sum- deems necessary for the protection of a mary of the final version of both statutes, which are victim of exploitation, including injunctions extensive. or directives to law enforcement agencies, as provided in this section. PBCBA BAR BULLETIN 17