Elder Law – Abuse of the Elderly
In the context of trust and estate litigation, clients occasionally believe the conduct of others rises to the level of criminal liability. While filing a lawsuit for breach of fiduciary duty or undue influence can help the client collect money, there are times that a client believes that getting money is insufficient. Short of requesting charges be filed by the police or State Attorney, there is a Florida law that is commonly referred to as the abuse of the elderly statute that goes beyond the traditional recovery of money when a senior adult is abused.
The elder abuse statute (Florida Statute §415.1111) allows for the prosecution of abuse, neglect or exploitation on behalf of a vulnerable adult against any perpetrator. Such an action pursuant to the statute must be brought by the vulnerable adult, that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect or exploitation. The statute permits recovery of reasonable attorney’s fees, costs and damages to a party who prevails, and the remedies are in addition to other legal and administrative remedies available to a vulnerable adult.
What can make this statute challenging in the trust and estate litigation context is the threshold issue of standing. Standing is a party’s right to make a legal claim or seek judicial enforcement of a duty or right. For a child of an elderly (“vulnerable”) parent to be able to bring a claim under 415.1111 on the parent’s behalf, he or she must either be the guardian of the parent, have the parent’s consent, or be appointed personal representative of the parent’s estate after death. So as far as estate (“post-death) litigation goes, to satisfy the standing issue one must be the personal representative.
In trust litigation, the elder abuse law does not apply easily. What is the remedy for a child who is replaced as co-trustee with the parent on a revocable trust by a new acquaintance who does not have the parent’s best interest at heart? Without consent of the parent to file an elder abuse lawsuit, the child must petition for and be appointed guardian by the Circuit Court. It has been argued that a very comprehensive durable power of attorney may grant to the child such consent as to confer standing under Florida Statute 415.1111.
The abuse of elderly law is an additional arrow in the quiver of the estate and trust litigation lawyer.