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This is the third and final installment of the 2021 legislative update. It covers a suite of interrelated new statutory changes intended to protect senior citizens from exploitation as well as reporting on Florida’s distinction as the first state in the nation to adopt an “eldercaring coordination” law.

Part 1 covers two major new additions to our Trust Code intended to bolster Florida’s competitiveness in the high stakes trust business marketplace. And part 2 covers a broad range of bread and butter statutory changes that could have a big impact on our day-to-day practice, but may not get the kind of publicity and notice they otherwise deserve.

The elder abuse epidemic.

First some context. Elder abuse is a huge problem in Florida. Consider the following research compilation from the Legislative Staff Analysis for HB 1041:

As the country’s “baby-boom” population reaches retirement age and life expectancy increases, the nation’s elder population is projected to increase from 49.2 million in 2016 to 77 million by 2034. Florida has long been a destination state for senior citizens and has the highest percentage of senior residents in the entire nation. In 2018, Florida had an estimated 4.3 million people age 65 and older, approximately 20 percent of the state’s population. By 2030, this number is projected to increase to 5.9 million, meaning the elderly will make up approximately one quarter of the state’s population and will account for most of the state’s growth.

Elder populations are vulnerable to abuse and exploitation due to risk factors associated with aging, such as physical and mental infirmities and social isolation. In Florida, almost 1.3 million senior citizens live in medically under served areas and 1.4 million suffer from one or more disabilities.

According to the Department of Justice, approximately 1 in 10 seniors is abused each year in the United States, and incidents of elder abuse are reported to local authorities in 1 out of every 23 cases. Elder abuse can have significant physical and emotional effects on an older adult, and can lead to premature death. Abused seniors are twice as likely to be hospitalized and three times more likely to die than non-abused seniors.

Elder abuse occurs in community settings, such as private homes, as well as in institutional settings like nursing homes and other long-term care facilities. Prevalent forms of abuse are financial exploitation, neglect, emotional or psychological abuse, and physical abuse; however, an elder abuse victim will often experience multiple forms of abuse at the same time. The most common perpetrators of elder abuse are relatives, such as adult children or a spouse; friends and neighbors; and home care aides. Research indicates that elder abuse is under reported, often because the victims fear retribution or care for or trust their perpetrators. Elder abuse deaths are more likely to go undetected because an elder death is expected to occur, given age or infirmity, more so than other deaths due to abuse such as a child death or a death involving domestic violence. Some experts believe this may be one of the reasons elder abuse lags behind child abuse and domestic violence in research, awareness, and systemic change.

[1] Florida’s “slayer rule” expanded to cover elder abuse + other new tools in the fight against elder abuse.

Against this backdrop HB 1041 enacted a slew of legislative changes, all focused on curbing the elder abuse epidemic confronting the U.S. generally, and Florida in particular. Each of these changes could reasonably be the subject of its own article or blog post, and I’m sure we’ll feel their collective impact for years to come. But for now, here’s a summary of this year’s suite of new legislative tools available to us as Florida attorneys in the fight against elder abuse, as provided in the bill’s Legislative Staff Analysis:

The bill creates s. 732.8031, F.S., and amends s. 736.1104, F.S., to prohibit a person who commits any of the following offenses on an elderly or disabled person in any state or jurisdiction from serving as a personal representative or inheriting from the victim’s estate, trust, or other beneficiary assets:

  • Abuse;
  • Neglect;
  • Exploitation; or
  • Aggravated manslaughter.

A final judgment of conviction for abuse, neglect, exploitation, or aggravated manslaughter of the decedent creates a rebuttable presumption that a convicted person may not inherit a beneficiary asset. In the absence of a qualifying conviction, the court may determine by the greater weight of the evidence whether the abuser’s, neglector’s, exploiter’s, or killer’s conduct as defined in ss. 825.102, 825.103, or 782.07(2), F.S., caused the victim’s death, in which the person may not inherit. However, a convicted person may inherit from an estate, trust, or other beneficiary asset if it can be shown by clear and convincing evidence that the capacitated victim reinstated the person as a beneficiary.

The bill also:

  • Clarifies who may be liable in the event a person is unable to inherit because of abuse, neglect, exploitation, or aggravated manslaughter.
  • Requires property acquired as a result of abuse, neglect, exploitation, or manslaughter of an elderly person or disabled adult to be returned.
  • Provides that an obligor making payment according to the terms of its policy or obligation is not liable for said payment unless more than 2 business days before payment, it receives written notice of a claim under the bill.
  • Amends s. 16.56, F.S., to authorize the Office of Statewide Prosecution to investigate and prosecute crimes under chapter 825, F.S.
  • Amends s. 825.101, F.S., to define the terms:
    • “Improper benefit” as any remuneration or payment, by or on behalf of any service provider or merchant of goods, to any person as an incentive or inducement to refer customers or patrons for past or future services or goods; and
    • “Kickback” as having the same meaning as in provided in s. 456.054(1), F.S.
  • Amends s. 825.102, F.S., to prohibit unreasonable isolation of an elderly person or disabled adult from his or her family members.
  • Amends s. 825.103, F.S., to:
    • Prohibit seeking out appointment as a guardian, trustee, or agent under power of attorney with the intent to obtain control over the victim’s assets and person for the benefit of a perpetrator or a third party.
    • Prohibit intentional conduct by a perpetrator who modifies or alters the victim’s originally intended estate plan to financially benefit either the perpetrator or a third party in a manner inconsistent with the intent of the elderly person or disabled adult.
    • Expand the meaning of exploitation of an elderly or disabled person to include breach of fiduciary duty resulting in a kickback or receipt of an improper benefit.

The bill also amends s. 825.1035, F.S., to authorize an agent under a DPOA to petition for an injunction for protection against exploitation of a vulnerable adult, and to allow a court to make a one-time extension of the injunction. The bill amends the statutory form for a petition for an injunction for protection against exploitation of a vulnerable adult in s. 825.1035, F.S., to include sufficient identifying information about the petitioner or the vulnerable adult.

By the way, for more on why expanding our slayer statute to cover elder abuse cases is a good idea, you’ll want to read Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance, by Natasa Glisic. Here’s an excerpt:

As elder abuse is on the rise, the states have realized that something more needs to be done to combat it. There are currently eight states that have expanded their Slayer Rule statutes to include perpetrators of elder abuse. Just like the original Slayer Rule disinherits the heir or beneficiary who has killed the decedent, the elder-abuse Slayer Rule disinherits the heir or beneficiary who has abused the decedent. The public policy behind expanding the Slayer Rule is to prevent perpetrators of elder abuse from profiting from their wrongdoing. The perpetrator will be deemed as to have predeceased the decedent or to have disclaimed his or her interest in the decedent’s estate. As previously mentioned, family members are usually the perpetrators of elder abuse and the expansion of the Slayer Rule will work effectively to penalize abusers. The expansion is effective because family members are the ones to inherit under a state’s intestacy laws and in many instances are beneficiaries under the decedent’s last will and testament. Some perpetrators are motivated to commit financial abuse in order to purposefully modify the victim’s estate plan. Others purposefully engage in abuse in order to speed up the victim’s death so they can inherit. As the Slayer Rule is applied to cases of elder abuse, the wrongdoer is accordingly punished while the future abuser is deterred from committing elder abuse. …

Expanding the Slayer Rule will not only be beneficial for public policy and let our elderly population know that the law is on their side, but it will also deter potential abusers. As many forms of elder abuse are fueled by the abuser’s greediness and possibility of inheritance, the abuser’s knowledge of the repercussions barring inheritance will reduce his or her incentive to abuse. For example, a caretaker-child will be less likely to refuse to provide his or her aging parent with decent living conditions because he does not want to spend his or her would-be inheritance money when he knows he could be completely barred from inheriting if found guilty or liable for elder abuse. Elder abuse caused by monetary incentives will be reduced because the abuser will be deterred by the possibility of statutory disinheritance.

[2] Florida enacts first-in-the-nation “eldercaring coordination” law.

If you get a call from a desperate family member wanting to protect mom or dad from obvious financial exploitation or some other form of abuse, your first question should be: is the parent legally incapacitated? If the answer’s “yes,” your path is clear and in many ways these are the “easy” cases. There exists a well defined, judicially enforceable mechanism for addressing the problem at hand: guardianship.

Unfortunately, the guardianship route doesn’t solve the problem of the elderly family member who isn’t quite legally incapacitated, but is incontrovertibly vulnerable due to diminished capacity. These “in between” cases are always the hardest calls. Courts are reluctant to interfere with the rights of individuals who have legal capacity, and the legal representation of these individuals is challenging. We now may have a solution for some of these in-between cases; it’s called “eldercaring coordination,” and it’s codified in new F.S. 44.407.

Florida is the first state in the nation to statutorily recognize eldercaring coordination, a court-ordered dispute resolution process for aging persons and their families that’s not dependent on a prior adjudication of incapacity. The new eldercaring coordination law resulted from a groundbreaking collaboration between the Florida Chapter of the Association of Family and Conciliation Courts and the Association for Conflict Resolution.

As reported in a Florida Bar News article entitled Eldercaring legislation becomes law:

Sen. Dennis Baxley, R-Ocala, and Rep. Brett Hage, R-The Villages, sponsored the legislation, which won unanimous approval of all committees and subcommittees of reference and on the floors of both houses during the 2021 Legislative Session. Gov. Ron DeSantis signed CS/CS/HB 441 on June 4 and §44.407, Florida Statutes, became law on July 1.

Florida’s new eldercaring coordination statute resulted from a collaboration between the Association for Conflict Resolution and the Florida Chapter of the Association of Family and Conciliation Courts. In 2014, Linda Fieldstone and Fifth Circuit Judge Michelle Morley created and co-chaired the FLAFCC Task Force on Eldercaring Coordination, which included 20 statewide entities and a well-credentialed advisory committee. The task force partnered with the Association for Conflict Resolution Task Force on Eldercaring Coordination — 20 U.S. and Canadian organizations — and developed guidelines for eldercaring coordination. The guidelines are based on parenting coordination, a dispute resolution process for parents in high conflict regarding child-related issues.

In 2015, the two task forces merged into the Elder Justice Initiative on Eldercaring Coordination. Eight Florida circuits are pilot sites, paving the way for easily replicable pilot sites throughout the U.S., Canada, and abroad. On World Elder Abuse Awareness Day 2018, the United Nations recognized eldercaring coordination as an Awareness to Action Model for the protection of aging persons.

Judge Morley said eldercaring coordination is a process that has been needed for a long time.

“Every time I talk about it with to someone, I see people nodding their heads, acknowledging that they know someone whose family has been hurt by conflict over the care of an aging loved one,” she said. “It breaks my heart to think of the wonderful and amazing people who are at the center of that family conflict in their waning years. They know they are not the strong, independent people they used to be, and they are dependent on people who fight about them. In court, this aging person is put in the spotlight — alone, afraid, confused, and often unheard — as family members argue about their personal abilities and future. Eldercaring coordination is a person-focused and strength-based process totally unlike the adversarial court process. It is a more sensible way to address the emotional and private family issues surrounding the care and autonomy of elder loved ones.”

For me, this is essentially an elder-abuse protection tool that aids diminished, vulnerable, elderly adults that don’t meet the strict legal definition of “incapacity,” but clearly need help. Anyway, for a more formal summary of this new statutory tool you’ll want to read the bill’s Legislative Staff Analysis. Here’s an excerpt:

The bill creates s. 44.407, F.S., establishing a statutorily-authorized alternative dispute resolution option in which court-appointed eldercaring coordinators assist elders, their legally authorized decision makers, and their family members in resolving high-conflict disputes that can impact an elder’s safety and autonomy. …

The bill authorizes a court to appoint an eldercaring coordinator and refer the parties to eldercaring coordination upon:

  • Agreement of the parties;
  • The court’s own motion; or
  • Any party’s motion

… A court may only refer the parties to eldercaring coordination to address disputes regarding an elderly person’s care and safety, and may not refer the parties to eldercaring coordination in actions brought under chapters 732, 733, and 736, F.S., which relate to wills and trusts.

… The bill requires the eldercaring coordinator’s fees to be paid in equal portion by each party referred to the eldercaring coordination process and requires the referral order to specify the percentage of eldercaring coordination fees each party must pay. The court may determine the allocation among the parties of fees and costs and may make an unequal allocation based on the financial circumstances of each party …  If the court finds a party is indigent, the court may not order eldercaring coordination unless public funds are available to pay the indigent party’s portion or a non-indigent party agrees to pay the fees and costs.