Blogs from November, 2009


Elders and Vulnerable Adults Frequently Get Taken For a Ride

According to some recent statistical surveys, there will be 71.5 million people living in the United States who are over 65 years of age by the year 2030.  With the increase in the number of elderly persons moving to Florida, there will of course be a proportional number of those living here who have cognitive disabilities.  These seniors are frequently vulnerable targets of exploitation.

Florida has taken steps to increase the protection of our vulnerable adults through enacting the abuse of the elderly statute.  The Florida Exploitation of Elderly Statute codified at Fla.Stat. §415.1111 et seq. imposes civil penalties on persons who exploit a vulnerable adult in Florida.  These civil actions against exploiters have teeth—as the statute allows actual and punitive damages by a victim and the prevailing party can also recover attorney fees and costs.  Also, the statute is non-exclusive and allows cumulative remedies against perpetrators.  Finally, actions under Chapter 772 (Civil Penalties for Criminal Practices) allow for civil remedies for theft or exploitation of the elderly and can include treble (triple) damages, attorneys’ fees, and court costs.

However, even with the best laws in place, there will continue to be exploitation of elderly and vulnerable adults.   The National Conference on Crime Against the Aging reports that the elderly are “eight times more vulnerable to crime than younger people, primarily because of their physical and financial limitations.” 

Florida law defines a “vulnerable adult” as any person over 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. 

Consider the recent allegations against Fort Lauderdale attorney Scott Rothstein who has been accused of running an investment scam, recently estimated by the FBI as one of the biggest fraud cases in South Florida history that could top $1 billion.  Rothstein is also accused of defrauding his friend and auto magnate Ed Morse, who is 88 years old. 

Newspapers report that Morse and Rothstein shared a close relationship for several years.  After Morse encountered a business dispute with an interior decorator, he turned to Rothstein to sue for what Morse reportedly considered a “botched job.”  Reports indicate that Morse lost the case, but that Rothstein allegedly lied to him and told him he won $23 million.  Further, Rothstein allegedly produced fake orders from a judge saying Morse could satisfy the $23 million he won against the interior decorator by seizing a Cayman Island bank account, but only if Morse posted a $57 million bond.  Morse then reportedly wired Rothstein the cash.

The question of what constitutes exploitation is one that our firm investigates and prosecutes civilly.  The issue often involves examining evidence pointing to the conclusion that the elderly person was victimized by fraud.  We see many cases in the context of probate litigation, will, and trust contests, involving financial gifts and other money transactions based on false pretenses by an unscrupulous person.  Florida law defines “exploitation” in very broad terms, which encompasses a wide range of conduct by persons taking advantage of older Floridians. According to Florida law, “exploitation” may include, but is not limited to:

 1. Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;

 2. Unauthorized taking of personal assets;

 3. Misappropriation, misuse, or transfer of sums of money belonging to a vulnerable adult from a personal or joint account; or

 4. Intentional or negligent failure to effectively use a vulnerable adult’s income and assets for the necessities required for that person’s support and maintenance.


Most Recent Posts from November, 2009