One of the pleasures of publishing this blog over the years has been the opportunity to meet and interact with some truly impressive lawyers.
I recently had one of those moments when I was introduced to Shannon M. Miller of The Miller Elder Law Firm, PA, in Gainesville, Florida. Ms. Miller is a Florida Bar Board Certified Elder Law Attorney and the past president of the Academy of Florida Elder Law Attorneys. She’s also a fellow USMC veteran (Semper Fi!) and former public defender.
I’m guessing Ms. Miller’s past familiarity with our criminal justice system had something to do with her willingness to take on civil cases that also involved criminal violations arising from the financial exploitation of the elderly. In 2014, she was heavily involved in the legislative revamp of F.S. 825.103, which criminalizes the financial exploitation of elder Floridians (see here). A lot of work and study went into that legislation, as summarized in its legislative Staff Analysis.
Ms. Miller’s a big fan of F.S. 825.103 – when used properly – and was concerned my coverage of the statute in the context of the Franke case didn’t do it justice (see here). I invited her to share her thoughts with all of us in the form of an interview, and she graciously accepted.
 Can you give us some background of your experience with exploitation cases?
My experience with exploitation cases began when I became an attorney in private practice in 1995. Before that time, I was a public defender. During my first exploitation case, I learned that my 92-year-old client had been widowed and that her pastor had offered to assist her with managing her personal bank account. Having never managed her own finances, she added him as a joint account holder on her account. Shortly thereafter the pastor removed all of my client’s savings which totaled about $115,000. Actually, he left $5,000 for “her spending money” in the account. He moved the money into his own account indicating that he was doing it in order “to protect her from predators”. He would not give the funds back, nor pay any of her bills.
After much research, I learned that by adding someone to her account, there was a presumption that the pastor had the ability to remove assets from the account. After much litigation, and some horrifying discovery, mostly due to my client’s confusion and short term memory loss, we were able to settle the case by securing additional funds for her from the joint account, but it ended up that he retained approximately half of the joint account assets for himself. This man is a predator. I would not be surprised if this was not the first time he had exploited someone. This was one of the first experiences that I had with exploitation and one that prompted my interest in pursuing law changes in Florida, as well as pursuing exploitation cases.
At our firm we have probably done 30-40 exploitation cases from the civil/probate side. We did these cases before the new statute was implemented and after. The greatest addition to obtaining judgments and convictions from a criminal prosecution has been the revamping of the definition of exploitation under Fla. Stat. 825.103. This revamping is important to civil/probate practitioners as well because it provides the basis of the definition of exploitation under the civil theft statute (F.S. 772.11), which provides for many more civil theft cases. Civil theft, when properly plead provides for repayment of the stolen funds within 30 days or the victim is able to seek treble damages. This threat often gets the stolen funds back into the hands of older victims very quickly without the scary landscape of civil litigation dragging out for years.
F.S. 825.103 also includes the ability for us to get beyond the idea that “It’s a civil matter” simply because someone is a family member. I noticed in your original blog post on this topic that you were talking about criminalizing civil disputes, but the reality is that if a person steals from another person, whether they are a brother who is a trustee who takes from a sister who is a beneficiary, or a son who buys fur coats for his wife from dad’s money because he is an agent under a durable power of attorney that says self-dealing is okay, these are theft cases and they should be prosecuted as criminal cases, not as civil disputes.
I think the same is true when we are talking about “over-criminalizing”. The reality is, we are under-criminalizing exploitation cases and I think that is clear in the attached Senate Assessment of the law as it was pending in the legislature.
This assessment gives some of the statistics with regard to the lack of prosecution of these cases, as well as a lack of reporting simply because people are afraid that their disabled parent, or they themselves, will not be listened to and then they will have some kind of stigma attached to them for reporting of a family member who is, in fact, abusing them. I would encourage you to review Mickey Rooney’s testimony at the Senate Committee on Exploitation that was conducted six (6) years ago to understand how exploitation is perpetrated.
Most of the cases that we deal with usually involve isolation and financial pressure because no one else cares for the senior or they will have to go into a nursing home if the predator were to leave the situation. Often the perpetrator will tell lies to the victim who often suffers from diminished capacity or full incapacity.
 Why is Adult Protective Services dedicated to prosecuting cases against fiduciaries?
Adult Protective Services is charged with protecting seniors who are vulnerable. That is their only mission. They are not charged with any powers to prosecute cases, but they can refer them to law enforcement or to the prosecutor’s office, not only to the State Attorney’s office, but also to the Medicaid Fraud Unit, the Attorney General’s office, whichever is appropriate, and they can make a recommendation, but they have no law enforcement powers. They do not carry firearms, they do not have the ability to subpoena documents. If a case involves a durable power of attorney under the Durable Power of Attorney statute there is some provision for Adult Protective Services to obtain accountings, but other than that, it is really up to law enforcement and prosecutors to pursue criminal charges. So, Adult Protective Services is not in the role of prosecuting these cases criminally. They do not have that ability, nor is that their mission. Their primary goal is making sure that the vulnerable adult is safe. They go in, they assess and if they have to relocate a person or if they need to take steps to make sure the person is safe, then they will go to court and do that, but their job is not to prosecute criminal cases.
 In my blog on this topic, I indicated that perhaps we should be advising fiduciaries to “Plead the Fifth” and advise clients to get with a criminal defense attorney in dealing with these matters. Does that not appear to you as over-criminalization of inheritance litigation?
My advice is that we should be advising clients, agents under a durable power of attorney, guardians, trustees, and joint account holders that expenditures that are made by fiduciaries should be for the benefit of the vulnerable adult, not the agent, trustee, guardian or joint account holder.
The Astor case is an excellent example of undue influence. We cannot allow people to direct the incapacitated person to the point where they feel like they have no other choice, but to make a change to their estate plan, or end up on the street. I would point out as well that the Astor estate changes were made at the very end of Brooke Astor’s life—she died at 105 years old. Her grandson eventually stepped into protect her by establishing a guardianship. In reviewing the facts of that case, it is clear when we look at the Carpenter factors that the presumption shifted so that the beneficiary (Marshall Astor) had the burden of showing it was NOT undue influence. I agree with you that when we are talking about a future expectancy like an inheritance, it really is not a typical nor predicted scenario under Fla. Stat. 825.103. I can tell you as one of the work group members who drafted the legislation, undue influence was not one of our considerations as it related to inheritance. I am not sure that it really meets the definitions of exploitation because it is a future expectancy. Anybody can change their estate plan at any time.
But that particular matter aside, the rest of these cases – when we are dealing with trustees who are literally stealing money from beneficiaries, attorneys-in-fact, and even guardians, this statute gives us the opportunity to create real remedies for these clients who otherwise really just get their lives stolen away from them and they must wait for years for any recompense.
 What does your typical exploitation case look like?
Typically, we start with an emergency temporary guardianship case and an ex parte motion to freeze assets, although some cases can proceed without a determination of incapacity depending on the exploitation definition, such as the joint account provision or negligent use of funds. Once we get the emergency guardianship established, we subpoena documents, bank statements, and find everything that we can to assist the Assistant State Attorney, and then we wrap it up in a nice big package and send it over to them and say, “Hey, guys. This is a case we would like you to look at.” Then we proceed with the case on the civil side, by sending a Civil Theft Demand letter, then proceed with an action against the predator. What we often find is that this is not the first person they have exploited in the family or as a caregiver.
What Elder Law and Probate and Trust litigators are able to do is to create publicity that ultimately can result in very positive results where people might think twice about exploiting. There are actually seven (7) ways to define exploitation under the new statute, one of which is something called a “presumption of exploitation”. I have yet to hear that this has been used in the criminal setting. I am not sure any prosecutors have used it, simply because it is untested. Prosecutors that are doing these cases are dedicated and now we are getting some judges on board across the state with the understanding that there is really no difference between theft from your parent versus theft from someone else, or physical or mental abuse of a child vs. physical or mental abuse of a senior. We really just need to get people on board to understand that theft is theft and we hope that this new law is going to help us change the way people consider these serious situations as civil matters. I would encourage you to take a good look at that statute and talk to people who have actually prosecuted these cases.
In the Elder Law community, if you ask how many people know someone who has been exploited, or how many people have seen exploitation cases of ten (10) or more, nearly every hand in the room goes up. We get referrals probably two to three times a week for these kinds of cases. It is really exploding in Florida, which is why Fla. Stat. 825.103 is so important.