The bread and butter work of most probate litigators includes breach of fiduciary duty claims by guardians, trustees, and agents acting under powers of attorney (POAs). These are all civil cases. What many probate litigators may not be aware of is that for good and valid reasons, much of this conduct can also get a defendant arrested, criminally prosecuted, and sent to prison for a very long time under F.S. 825.103, which criminalizes most of this conduct as a form of “exploitation of an elderly person or disabled adult.”
And because these cases often turn on issues of “intent” (for example, if a caregiver uses a POA to pay herself from mom’s bank account, did caregiver intend to financially exploit mom or compensate herself for legitimate services?), and because a person’s intent is usually proven indirectly by circumstantial evidence, the importance of what “test” is used to decide the intent question can’t be overstated, especially when the consequences may include years behind bars. The Johnson v. State case is all about what it takes to prove criminal “intent” in exploitation of the elderly cases.
Johnson v. State, — So.3d —-, 2019 WL 1053155 (4th DCA March 06, 2019)
The Johnson v. State case involves an 88 year old woman who was Baker Acted and hospitalized after exhibiting signs of dementia and found living in deplorable conditions. A neighbor visited her in the hospital, and ultimately ended up as her agent under a power of attorney (“POA”). Eventually, a guardian was appointed on behalf of the elderly woman and her neighbor (and neighbor’s minor daughter) were removed as signatories on her accounts. The guardian placed the elderly woman in a nursing home where she died a short time later.
According to the defendant neighbor, she used the POA to withdraw $13,549 from her elderly neighbor’s bank accounts to pay for her care, pay property taxes, pay for the cleanup of her elderly neighbor’s home, and pay an attorney to represent her elderly neighbor in guardianship proceedings. According to the neighbor, of this amount she deposited $2,590 in her own bank account to compensate herself for the time she spent working on the elderly woman’s home and to reimburse herself for expenses she incurred on her behalf. Also, according to the neighbor, she added her minor daughter as a pay-on-death beneficiary of the elderly woman’s bank accounts “based on advice from the bank’s manager …. to protect the funds in the event a probate case was filed.”
Based on these facts, one could plausibly conclude all we have is a fee dispute (i.e., was $2,590 a reasonable reimbursement for time spent and expenses incurred?) and an example of a well intentioned neighbor making a dumb mistake involving pay-on-death bank account designations that resulted in no harm (if the bank funds were frozen, the pay-on-death designations were never effectuated). On the other hand, one could just as plausibly conclude what we have here is the use of a POA to defraud an elderly woman. The deciding factor is: what was going on inside the head of the defendant neighbor? … in other words, what was her intent?
As explained by the 4th DCA, because this is a circumstantial-evidence case, the prosecutor’s burden is especially high.
In circumstantial cases, “a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Id. (quoting State v. Law, 559 So.2d 187, 188 (Fla. 1989) ). “[I]f there is direct evidence of a defendant’s actus reus, but the defendant’s intent is proven solely through circumstantial evidence, the special standard of review applies only to the state’s evidence establishing the element of intent.” Id.
Someone else’s money in your bank account = conviction:
If you can’t be convicted if you’re able to come up with “any reasonable hypothesis of innocence” for why you did something, you’d think just about any plausible explanation should be enough (including: “I’m sorry, I’m an idiot.”) And you’d be wrong. Why? Because once someone else’s money ends up in your bank account, no matter how well intentioned you might be or how reasonable your conduct might seem at the time, if in hindsight your fact finder doesn’t buy your story, you’re going to get convicted. So saith the 4th DCA:
There are two key cases issued by this Court which are instructive to the issue of intent in an exploitation of the elderly case. The first is Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002). … The second key case is McNarrin v. State, 876 So.2d 1253 (Fla. 4th DCA 2004). … Everett and McNarrin establish that when a defendant charged with exploitation of the elderly alleges that funds taken from the alleged victim were used for the victim’s benefit, the State must submit evidence to the contrary. Such contrary evidence could include unexplained deposits in the defendant’s bank accounts or acquisitions of property. See Everett, 831 So.2d at 742. In the instant case, although there was evidence corroborating Appellant’s claim that much of the money taken from the victim’s accounts was used for the benefit of the victim, there was also evidence establishing that Appellant deposited some of the money taken from the victim’s accounts into her own bank account and named her daughter as the beneficiary of the victim’s accounts. This evidence, when viewed in the light most favorable to the State, supports the alternative theory that Appellant intended to benefit herself and not preserve the victim’s estate. See Durousseau v. State, 55 So.3d 543, 557 (Fla. 2010) (“Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.”). Accordingly, we affirm the trial court’s denial of Appellant’s motion for judgment of acquittal on the issue of intent.