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Injunction for Protection Against Exploitation of a Vulnerable Adult

By Brandon D. Bellew | Categories: Blogs, Trusts & Estates | Share March 2019

There is now a procedure for obtaining an injunction for protection against exploitation of a vulnerable adult under Florida Statute Section 825.1035. This statute was enacted on July 1, 2018. It creates a cause of action for an injunction (and other relief) for protection against exploitation of a vulnerable adult. The court can enter an ex parte temporary injunction based upon verified pleadings or affidavits pending a full hearing and can enter a permanent injunction after a hearing against a person who has exploited a vulnerable adult.

A “vulnerable adult” is “a person 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, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.” Fla. Stat. § 415.102(28).

Exploitation of a vulnerable adult can occur under Florida Statutes Section 825.103(1) as follows: 1. Abusing a confidential or business relationship; 2. Taking or conspiring to take property by someone who knows or should know the vulnerable adult lacks the capacity to consent; 3. Breaching a fiduciary duty that results in appropriation or transfer of property without an equivalent value in exchange, committing fraud to obtain appointment as a fiduciary (power of attorney, trustee, etc.), or the fiduciary abusing powers; 4. Taking funds from a joint account that was created solely for the vulnerable adult’s benefit; and 5. A caregiver, intentionally or negligently, failing to use the vulnerable adult’s funds to provide appropriate care.

If exploitation of a vulnerable adult has occurred or is believed to have occurred, the following people can file a petition for injunction: 1. Vulnerable adult; 2. Guardian of a vulnerable adult; 3. Person or organization acting on behalf of the vulnerable adult with the consent of the vulnerable adult or the vulnerable adult’s guardian; 4. Person who simultaneously files a petition to determine incapacity and seeks appointment of an emergency temporary guardian. The petitioner is not required to be represented by an attorney. The petition for injunction must be filed in the guardianship proceeding, if one is pending. The petitioner must report the exploitation to the central abuse hotline and swear that he or she has done so as part of the petition.

The court can enter the following relief as a result of exploitation, both temporarily and permanently: 1. Prohibit respondent from having contact with the vulnerable adult; 2. Restrain further acts of exploitation; 3. Award exclusive use and possession of the shared dwelling to the vulnerable adult (but the court must confirm that vulnerable adult has alternative means of care); 4. Freeze the vulnerable adult’s assets;1 5. Freeze the respondent’s assets if the assets are traceable to the exploitation; 6. Provide directives to law enforcement agencies; 7. If assets are temporarily frozen, order that specified living expenses of the vulnerable adult be paid; 8. If a permanent injunction is granted, order the respondent to participate in treatment or counseling at the respondent’s expense; 9. As part of a permanent injunction, direct that assets under a temporary freeze be returned to the vulnerable adult or remain frozen pending a determination of ownership; and 10. Award a final cost judgment against the respondent.

The complete form for the petition is provided in Section 825.1035. The circuit court clerk is required to assist the petitioner in filing the petition, provide forms, and provide instructions for completing the forms. The clerk shall also provide certified copies of an order of injunction, free of charge, to be served on any person or entity holding property or accounts and shall inform the petitioner about service of process and enforcement.

The sworn petition must include the vulnerable adult’s address, specific identifying information about the respondent (alleged exploiter), and the nature of the respondent’s association with the vulnerable adult. It must describe any other causes of action pending between the petitioner and respondent, any guardianship proceedings for the vulnerable adult, and any previous or pending attempts to obtain an injunction. The petitioner must describe his or her knowledge of any reports made to a government agency relating to the alleged exploitation and fully describe the factual basis for the alleged exploitation. Petitioner must list the vulnerable adult’s assets to the best of his or her knowledge, approximate value of assets that should be frozen for the vulnerable adult’s protection and specify any other requested relief for the protection of the vulnerable adult.

The Court may grant a temporary injunction ex parte (pending a full hearing) if the court finds that there is an immediate danger, there is a substantial likelihood of harm and success on the merits, the harm to the vulnerable adult outweighs the harm to the respondent, the injunction will not disserve the public interest, and it will protect the vulnerable adult. An ex parte temporary injunction is only effective for up to 15 days, and a full hearing must be set before its expiration. Only verified pleadings or affidavits may be used as evidence unless the respondent appears at the hearing or has received reasonable notice of the hearing. The respondent must be personally served with a copy of the petition, notice of hearing, and temporary injunction, if any, before the final hearing. If the petitioner is not the vulnerable adult, the vulnerable adult must also be served. If assets are frozen, the entity holding the assets must also be served. The clerk must provide all required documents to the sheriff or other law enforcement agency for service and enforcement of the injunction. An injunction is enforced through civil or criminal contempt proceedings.

 

 

  1. This includes lines of credit and assets held by a guardian or trustee. However, only the court with jurisdiction over the guardianship can freeze guardianship assets, and trust assets can only be frozen if prior service of process and reasonable notice of any hearing are given to the trustee(s).

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