Fla. Stat. § 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” Essentially this means that interested persons cannot contest a will until after the death of the person who made the will. But what if you know that your elderly family member or loved one has been taken advantage of by a caregiver and you want to protect him or her now?
Fortunately, the Florida Legislature has provided a means of not only protecting vulnerable, elderly adults but also punishing those who exploit them for personal gain. Fla. Stat. § 415.1111 provides a civil cause of action against a caregiver or person who stands in a position of trust and abuses that trust through neglect, deception, or intimidation in order to defraud his victim of money, assets, or property. Under Fla. Stat. § 415.102, the definition of “caregiver” is extremely broad. It includes any person who “has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person’s guardian that a caregiver role exists. Under the statute, a “Caregiver” can be a relative, household member, guardian, neighbor, or an employee and volunteers at a facility that provides residential care of treatment for vulnerable adults.
The statute also recognizes the fact that vulnerable elderly adults often lack the capacity and the means to file these actions on their own behalf. As such, the lawsuit can be brought by the vulnerable adult, or that person’s guardian, by a person acting on behalf of the vulnerable adult with consent, or by the personal representative of the estate of a deceased victim.
In one particularly shocking case of elderly abuse, the U.S. Court District Court for the Middle District of Florida indicated that the plaintiff could properly state a cause of action against a defendant who utilized the power of attorney document to make herself the sole beneficiary of an elderly man’s life insurance policy, trust, and annuities, not to mention the owner of his home! See Conseco Ins. Co. v. Clark, 2006 WL 2024401 (M.D. Fla. Jul 17, 2006). The Defendant acted as the elderly man’s attorney in fact pursuant to the power of attorney document for years while the unfortunate elderly gentleman lived in a nursing home, apparently unaware of the Defendant’s activities. The Plaintiff, the elderly man’s nephew and his primary beneficiary under the initial instruments, learned of the Defendant’s activities only after his uncle’s death. One of the issues discussed in the Court’s opinion was the fact that Plaintiff had difficulty in ascertaining the exact amount of the damage caused by the Defendant’s fraudulent abuse of the power of attorney because it was so extensive.
As the Conseco case demonstrates, Florida law provides a method of holding a defendant who exploits a vulnerable elderly adult accountable after the victim’s death – but by then the damage is already done. During the victim’s life, Fla. Stat. § 415.1111 can be a powerful weapon against a person to combat the exploitation of the elderly and to recover damages on their behalf. Notably, the statute provides for punitive damages and states that a party who prevails in an action arising from the exploitation or abuse of an elderly adult may be entitled to recover attorney’s fees, and costs of the action.
If your family member or loved one has been exploited by a caregiver or a person in a position of trust, contact the attorneys at Adrian Philip Thomas.
