Bill Text: FL S1344 | 2021 | Regular Session | Comm Sub
Bill Title: Protection of Elderly Persons and Disabled Adults
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Introduced - Dead) 2021-04-26 - Laid on Table, companion bill(s) passed, see CS/HB 1041 (Ch. 2021-221) [S1344 Detail]
Download: Florida-2021-S1344-Comm_Sub.html
Florida Senate - 2021 CS for CS for SB 1344 By the Committees on Appropriations; and Criminal Justice; and Senator Burgess 576-04458-21 20211344c2 1 A bill to be entitled 2 An act relating to protection of elderly persons and 3 disabled adults; amending s. 16.56, F.S.; adding 4 offenses concerning elderly persons and disabled 5 adults to the authority of the Office of Statewide 6 Prosecution; amending s. 733.303, F.S.; providing that 7 a person who has been convicted of abuse, neglect, or 8 exploitation of an elderly person or a disabled adult 9 is not qualified to act as a personal representative; 10 creating s. 732.8031, F.S.; providing for forfeiture 11 of specified benefits of persons who have been 12 convicted of certain offenses involving elderly 13 persons or disabled adults; providing that certain 14 persons who have been convicted of certain offenses 15 involving elderly persons or disabled adults may still 16 retain an inheritance, survivorship rights, or any 17 other rights if the victim executes a specified 18 instrument; amending s. 736.1104, F.S.; providing that 19 a beneficiary of a trust may not benefit under the 20 trust if the person was convicted of certain offenses 21 involving elderly persons or disabled adults; amending 22 s. 825.101, F.S.; defining terms; amending s. 825.102, 23 F.S.; specifying additional conduct that constitutes 24 abuse of an elderly person or a disabled adult; 25 providing a defense to certain violations; providing 26 criminal penalties; amending s. 825.103, F.S.; 27 specifying additional conduct that constitutes 28 exploitation of an elderly person or a disabled adult; 29 providing criminal penalties; amending s. 825.1035, 30 F.S.; revising provisions concerning injunctions for 31 protection against exploitation of a vulnerable adult; 32 providing for extension of ex parte temporary 33 injunctions; providing an effective date. 34 35 Be It Enacted by the Legislature of the State of Florida: 36 37 Section 1. Paragraph (a) of subsection (1) of section 38 16.56, Florida Statutes, is amended to read: 39 16.56 Office of Statewide Prosecution.— 40 (1) There is created in the Department of Legal Affairs an 41 Office of Statewide Prosecution. The office shall be a separate 42 “budget entity” as that term is defined in chapter 216. The 43 office may: 44 (a) Investigate and prosecute the offenses of: 45 1. Bribery, burglary, criminal usury, extortion, gambling, 46 kidnapping, larceny, murder, prostitution, perjury, robbery, 47 carjacking, home-invasion robbery, and patient brokering; 48 2. Any crime involving narcotic or other dangerous drugs; 49 3. Any violation of the Florida RICO (Racketeer Influenced 50 and Corrupt Organization) Act, including any offense listed in 51 the definition of racketeering activity in s. 895.02(8)(a), 52 providing such listed offense is investigated in connection with 53 a violation of s. 895.03 and is charged in a separate count of 54 an information or indictment containing a count charging a 55 violation of s. 895.03, the prosecution of which listed offense 56 may continue independently if the prosecution of the violation 57 of s. 895.03 is terminated for any reason; 58 4. Any violation of the Florida Anti-Fencing Act; 59 5. Any violation of the Florida Antitrust Act of 1980, as 60 amended; 61 6. Any crime involving, or resulting in, fraud or deceit 62 upon any person; 63 7. Any violation of s. 847.0135, relating to computer 64 pornography and child exploitation prevention, or any offense 65 related to a violation of s. 847.0135 or any violation of 66 chapter 827 where the crime is facilitated by or connected to 67 the use of the Internet or any device capable of electronic data 68 storage or transmission; 69 8. Any violation of chapter 815; 70 9. Any violation of chapter 825; 71 10.9.Any criminal violation of part I of chapter 499; 72 11.10.Any violation of the Florida Motor Fuel Tax Relief 73 Act of 2004; 74 12.11.Any criminal violation of s. 409.920 or s. 409.9201; 75 13.12.Any crime involving voter registration, voting, or 76 candidate or issue petition activities; 77 14.13.Any criminal violation of the Florida Money 78 Laundering Act; 79 15.14.Any criminal violation of the Florida Securities and 80 Investor Protection Act; or 81 16.15.Any violation of chapter 787, as well as any and all 82 offenses related to a violation of chapter 787; 83 84 or any attempt, solicitation, or conspiracy to commit any of the 85 crimes specifically enumerated above. The office shall have such 86 power only when any such offense is occurring, or has occurred, 87 in two or more judicial circuits as part of a related 88 transaction, or when any such offense is connected with an 89 organized criminal conspiracy affecting two or more judicial 90 circuits. Informations or indictments charging such offenses 91 shall contain general allegations stating the judicial circuits 92 and counties in which crimes are alleged to have occurred or the 93 judicial circuits and counties in which crimes affecting such 94 circuits or counties are alleged to have been connected with an 95 organized criminal conspiracy. 96 Section 2. Subsection (1) of section 733.303, Florida 97 Statutes, is amended to read: 98 733.303 Persons not qualified.— 99 (1) A person is not qualified to act as a personal 100 representative if the person: 101 (a) Has been convicted of a felony. 102 (b) Has been convicted in any state or foreign jurisdiction 103 of abuse, neglect, or exploitation of an elderly person or a 104 disabled adult, as those terms are defined in s. 825.101. 105 (c)(b)Is mentally or physically unable to perform the 106 duties. 107 (d)(c)Is under the age of 18 years. 108 Section 3. Section 732.8031, Florida Statutes, is created 109 to read: 110 732.8031 Forfeiture for abuse, neglect, exploitation, or 111 aggravated manslaughter of an elderly person or a disabled 112 adult.— 113 (1) A surviving person who is convicted in any state or 114 foreign jurisdiction of abuse, neglect, exploitation, or 115 aggravated manslaughter of an elderly person or a disabled 116 adult, as those terms are defined in s. 825.101, for conduct 117 against the decedent or another person on whose death such 118 beneficiary’s interest depends is not entitled to any benefits 119 under the will of the decedent or the Florida Probate Code, and 120 the estate of the decedent passes as if the abuser, neglector, 121 exploiter, or killer had predeceased the decedent. Property 122 appointed by the will of the decedent to or for the benefit of 123 the abuser, neglector, exploiter, or killer passes as if the 124 abuser, neglector, exploiter, or killer had predeceased the 125 decedent. 126 (a) A final judgment of conviction for abuse, neglect, 127 exploitation, or aggravated manslaughter of the decedent or 128 other person creates a rebuttable presumption that this section 129 applies. 130 (b) In the absence of a qualifying conviction, the court 131 may determine by the greater weight of the evidence whether the 132 decedent’s or other person’s death was caused by or contributed 133 to by the abuser’s, neglector’s, exploiter’s, or killer’s 134 conduct as defined in s. 825.102, s. 825.103, or s. 782.07(2) 135 for purposes of this section. 136 (2) A joint tenant who is convicted in any state or foreign 137 jurisdiction of abuse, neglect, exploitation, or aggravated 138 manslaughter of an elderly person or a disabled adult, as those 139 terms are defined in s. 825.101, for conduct against another 140 joint tenant decedent thereby effects a severance of the 141 interest of the decedent so that the share of the decedent 142 passes as the decedent’s sole property and as if the abuser, 143 neglector, exploiter, or killer has no rights by survivorship. 144 This subsection applies to joint tenancies with right of 145 survivorship and tenancies by the entirety in real and personal 146 property; joint and multiple-party accounts in banks, savings 147 and loan associations, credit unions, and other financial 148 institutions; and any other form of coownership with 149 survivorship interests. 150 (a) A final judgment of conviction for abuse, neglect, 151 exploitation, or aggravated manslaughter of the decedent or 152 other person creates a rebuttable presumption that this section 153 applies. 154 (b) In the absence of a qualifying conviction, the court 155 may determine by the greater weight of the evidence whether the 156 decedent’s or other person’s death was caused by or contributed 157 to by the abuser’s, neglector’s, exploiter’s, or killer’s 158 conduct as defined in s. 825.102, s. 825.103, or s. 782.07(2) 159 for purposes of this section. 160 (3) A named beneficiary of a bond, life insurance policy, 161 or other contractual arrangement who is convicted in any state 162 or foreign jurisdiction of abuse, neglect, exploitation, or 163 aggravated manslaughter of an elderly person or a disabled 164 adult, as those terms are defined in s. 825.101, for conduct 165 against the owner or principal obligee of the bond, life 166 insurance policy, or other contractual arrangement or the person 167 upon whose life such policy was issued is not entitled to any 168 benefit under the bond, policy, or other contractual 169 arrangement, and the bond, policy, or other contractual 170 arrangement becomes payable as though the abuser, neglector, 171 exploiter, or killer had predeceased the decedent. 172 (a) A final judgment of conviction for abuse, neglect, 173 exploitation, or aggravated manslaughter of the decedent or 174 other person creates a rebuttable presumption that this section 175 applies. 176 (b) In the absence of a qualifying conviction, the court 177 may determine by the greater weight of the evidence whether the 178 decedent’s or other person’s death was caused by or contributed 179 to by the abuser’s, neglector’s, exploiter’s, or killer’s 180 conduct as defined in s. 825.102, s. 825.103, or s. 782.07(2) 181 for purposes of this section. 182 (4) Any other property or interest acquired as a result of 183 the abuse, neglect, exploitation, or manslaughter must be 184 returned in accordance with this section. 185 (5)(a) This section does not affect the rights of any 186 person who purchases property for value and without notice from 187 the abuser, neglector, exploiter, or killer before rights have 188 been adjudicated in accordance with this section. 189 (b) The abuser, neglector, exploiter, or killer is liable 190 for the amount of the proceeds or the value of the property 191 under paragraph (a). 192 (6) Any insurance company, financial institution, or other 193 obligor making payment according to the terms of its policy or 194 obligation is not liable by reason of this section unless more 195 than 2 business days before payment it receives at its home 196 office or principal address written notice, or in the case of a 197 financial institution it receives notice in accordance with s. 198 655.0201, of a claim under this section. 199 (7) This section does not apply if it can be proven by 200 clear and convincing evidence that, after the conviction of 201 abuse, neglect, or exploitation, the victim of the offense, if 202 capacitated, ratifies an intent that the person so convicted of 203 abuse, neglect, or exploitation retain his or her inheritance, 204 survivorship rights, or any other right that might otherwise be 205 removed by this section by executing a valid written instrument, 206 sworn to and witnessed by two persons who would be competent as 207 witnesses to a will, which expresses a specific intent to allow 208 the convicted person to retain his or her inheritance, 209 survivorship rights, or any other right that might otherwise be 210 removed by this section. 211 Section 4. Subsection (3) is added to section 736.1104, 212 Florida Statutes, to read: 213 736.1104 PersonKillernot entitled to receive property or 214 other benefits by reason of victim’s death.— 215 (3) A beneficiary of a trust who was convicted in any state 216 or foreign jurisdiction of abuse, neglect, exploitation, or 217 aggravated manslaughter of an elderly person or a disabled 218 adult, as those terms are defined in s. 825.101, for conduct 219 against a settlor or another person on whose death such 220 beneficiary’s interest depends is not entitled to any trust 221 interest, including a homestead dependent on the victim’s death, 222 and such interest shall devolve as though the abuser, neglector, 223 exploiter, or killer had predeceased the victim. 224 (a) A final judgment of conviction for abuse, neglect, 225 exploitation, or aggravated manslaughter of the decedent or 226 other person creates a rebuttable presumption that this section 227 applies. 228 (b) In the absence of a qualifying conviction, the court 229 may determine by the greater weight of the evidence whether the 230 decedent’s or other person’s death was caused by or contributed 231 to by the abuser’s, neglector’s, exploiter’s, or killer’s 232 conduct as defined in s. 825.102, s. 825.103, or s. 782.07(2) 233 for purposes of this section. 234 (c) This subsection does not apply if it can be proven by 235 clear and convincing evidence that, after the conviction of 236 abuse, neglect, or exploitation, the victim of the offense, if 237 capacitated, ratifies an intent that the person so convicted of 238 abuse, neglect, or exploitation retain a trust interest by 239 executing a valid written instrument, sworn to and witnessed by 240 two persons who would be competent as witnesses to a will, which 241 expresses a specific intent to allow the convicted person to 242 retain a trust interest. 243 Section 5. Present subsections (8) through (14) of section 244 825.101, Florida Statutes, are redesignated as subsections (10) 245 through (16), respectively, and new subsections (8) and (9) are 246 added to that section, to read: 247 825.101 Definitions.—As used in this chapter: 248 (8) “Improper benefit” means any remuneration or payment, 249 by or on behalf of any service provider or merchant of goods, to 250 any person as an incentive or inducement to refer customers or 251 patrons for past or future services or goods. 252 (9) “Kickback” has the same meaning as in s. 456.054(1). 253 Section 6. Paragraphs (b) and (c) of subsection (1) of 254 section 825.102, Florida Statutes, are amended, and paragraph 255 (d) is added to that subsection, to read: 256 825.102 Abuse, aggravated abuse, and neglect of an elderly 257 person or disabled adult; penalties.— 258 (1) “Abuse of an elderly person or disabled adult” means: 259 (b) An intentional act that could reasonably be expected to 260 result in physical or psychological injury to an elderly person 261 or disabled adult;or262 (c) Active encouragement of any person to commit an act 263 that results or could reasonably be expected to result in 264 physical or psychological injury to an elderly person or 265 disabled adult; or 266 (d) Intentionally, and without lawful authority, isolating 267 or restricting access of an elderly person or a disabled adult 268 to family members for any length of time which could reasonably 269 be expected to result in physical or psychological injury to the 270 elderly person or disabled adult, or with the intent to promote, 271 facilitate, conceal, or disguise some form of criminal activity 272 involving the person or property of the elderly person or 273 disabled adult. It is a defense to a violation of this paragraph 274 that the defendant had reasonable cause to believe that his or 275 her action was necessary to protect the elderly person or 276 disabled adult from danger to his or her welfare. 277 278 A person who knowingly or willfully abuses an elderly person or 279 disabled adult without causing great bodily harm, permanent 280 disability, or permanent disfigurement to the elderly person or 281 disabled adult commits a felony of the third degree, punishable 282 as provided in s. 775.082, s. 775.083, or s. 775.084. 283 Section 7. Paragraphs (c), (d), and (e) of subsection (1) 284 of section 825.103, Florida Statutes, are amended, and paragraph 285 (f) is added to that subsection, to read: 286 825.103 Exploitation of an elderly person or disabled 287 adult; penalties.— 288 (1) “Exploitation of an elderly person or disabled adult” 289 means: 290 (c) Breach of a fiduciary duty to an elderly person or 291 disabled adult by the person’s guardian, trustee who is an 292 individual, or agent under a power of attorney which results in 293 an unauthorized appropriation, sale,ortransfer of property, 294 kickback, or receipt of an improper benefit. An unauthorized 295 appropriation under this paragraph occurs when the elderly 296 person or disabled adult does not receive the reasonably 297 equivalent financial value in goods or services, or when the 298 fiduciary violates any of these duties: 299 1. For agents appointed under chapter 709: 300 a. Committing fraud in obtaining their appointments; 301 b. Obtaining appointments with the purpose and design of 302 benefiting someone other than the principal or beneficiary; 303 c.b.Abusing their powers; 304 d.c.Wasting, embezzling, or intentionally mismanaging the 305 assets of the principal or beneficiary; or 306 e.d.Acting contrary to the principal’s sole benefit or 307 best interest; or 308 2. For guardians and trustees who are individuals and who 309 are appointed under chapter 736 or chapter 744: 310 a. Committing fraud in obtaining their appointments; 311 b. Obtaining appointments with the purpose and design of 312 benefiting someone other than the principal or beneficiary; 313 c.b.Abusing their powers; or 314 d.c.Wasting, embezzling, or intentionally mismanaging the 315 assets of the ward or beneficiary of the trust; 316 (d) Misappropriating, misusing, or transferring without 317 authorization money belonging to an elderly person or disabled 318 adult from an account in which the elderly person or disabled 319 adult placed the funds, owned the funds, and was the sole 320 contributor or payee of the funds before the misappropriation, 321 misuse, or unauthorized transfer. This paragraph only applies to 322 the following types of accounts: 323 1. Personal accounts; 324 2. Joint accounts created with the intent that only the 325 elderly person or disabled adult enjoys all rights, interests, 326 and claims to moneys deposited into such account; or 327 3. Convenience accounts created in accordance with s. 328 655.80;or329 (e) Intentionally or negligently failing to effectively use 330 an elderly person’s or disabled adult’s income and assets for 331 the necessities required for that person’s support and 332 maintenance, by a caregiver or a person who stands in a position 333 of trust and confidence with the elderly person or disabled 334 adult; or 335 (f) Knowingly obtaining or using, endeavoring to obtain or 336 use, or conspiring with another to obtain or use an elderly 337 person’s or a disabled adult’s funds, assets, property, or 338 estate through intentional modification, alteration, or 339 fraudulent creation of a plan of distribution or disbursement 340 expressed in a will, trust agreement, or other testamentary 341 devise of the elderly person or disabled adult without: 342 1. A court order, from a court having jurisdiction over the 343 elderly person or disabled adult, which authorizes the 344 modification or alteration; 345 2. A written instrument executed by the elderly person or 346 disabled adult, sworn to and witnessed by two persons who would 347 be competent as witnesses to a will, which authorizes the 348 modification or alteration; or 349 3. Action of an agent under a valid power of attorney 350 executed by the elderly person or disabled adult which 351 authorizes the modification or alteration. 352 Section 8. Paragraph (a) of subsection (2), paragraph (a) 353 of subsection (3), and paragraph (d) of subsection (5) of 354 section 825.1035, Florida Statutes, are amended to read: 355 825.1035 Injunction for protection against exploitation of 356 a vulnerable adult.— 357 (2) WHO MAY FILE; VENUE; RECORDING.— 358 (a) The cause of action may be sought in an adversary 359 proceeding by: 360 1. A vulnerable adult in imminent danger of being 361 exploited; 362 2. The guardian of a vulnerable adult in imminent danger of 363 being exploited; 364 3. A person or organization acting on behalf of the 365 vulnerable adult with the consent of the vulnerable adult or his 366 or her guardian;or367 4. An agent under a valid durable power of attorney with 368 the authority specifically granted in the power of attorney; or 369 5.4.A person who simultaneously files a petition for 370 determination of incapacity and appointment of an emergency 371 temporary guardian with respect to the vulnerable adult. 372 (3) FORM OF PETITION.— 373 (a) A sworn petition filed under this section must allege 374 the existence of exploitation, or the imminent exploitation, of 375 the vulnerable adult and must include the specific facts and 376 circumstances for which relief is sought. The sworn petition 377 must be in substantially the following form: 378 379 PETITION FOR INJUNCTION FOR PROTECTION 380 AGAINST EXPLOITATION OF A VULNERABLE ADULT 381 382 Before me, the undersigned authority, personally appeared 383 Petitioner ...(Name)..., who has been sworn and says that the 384 following statements are true: 385 1. The petitioner’s name is: _____________________________ 386 2. The petitioner’s address is: __________________________ 387 3. The petitioner’s relationship to the vulnerable adult 388 is: _______________________ 389 4. How long has the petitioner known the vulnerable adult: 390 ___________________________ 391 5. The vulnerable adult’s name is: _______________________ 392 6. Aliases of the vulnerable adult are: __________________ 393 7. The vulnerable adult’s date of birth is: _________ 394 8.1.The vulnerable adult’s address isadult resides at: 395 ____________________________...(address)....396 9. Does the vulnerable adult have one or more impairments 397 that impact his or her ability to perform normal activities of 398 daily living or to provide for his or her own care or 399 protection? 400 Yes______ No______ 401 If so, what are this person’s impairments? (check all that 402 apply) 403 .... Long-term physical disability 404 .... Sensory disability (e.g., hearing or vision impaired) 405 .... Cognitive disability 406 .... Mental or emotional disability 407 .... Developmental disability 408 .... Infirmity of aging 409 .... Other (explain) 410 10.2.The respondent’s last known address isrespondent411resides at: _____________________...(last known address)....412 11.3.The respondent’s last known place of employment is: 413 ...(name of business and address).... 414 12.4.Physical description of the respondent: .... 415 Race.... 416 Sex.... 417 Date of birth.... 418 Height.... 419 Weight.... 420 Eye color.... 421 Hair color.... 422 Distinguishing marks or scars.... 423 13.5.Aliases of the respondent: .... 424 14.6.The respondent is associated with the vulnerable 425 adult as follows: .... 426 15.7.The following describes any other cause of action 427 currently pending between the petitioner and the respondent, any 428 proceeding under chapter 744 concerning the vulnerable adult, 429 and any previous or pending attempts by the petitioner to obtain 430 an injunction for protection against exploitation of the 431 vulnerable adult in this or any other circuit; related case 432 numbers, if available; and the results of any such 433 attempts:...................................................... 434 ......... 435 16.8.The following describes the petitioner’s knowledge of 436 any reports made to a government agency, including, but not 437 limited to, the Department of Elderly Affairs, the Department of 438 Children and Families, and the adult protective services program 439 relating to the abuse, neglect, or exploitation of the 440 vulnerable adult; any investigations performed by a government 441 agency relating to abuse, neglect, or exploitation of the 442 vulnerable adult; and the results of any such reports or 443 investigations: .... 444 17.9.The petitioner knows the vulnerable adult is either a 445 victim of exploitation or the petitioner has reasonable cause to 446 believe the vulnerable adult is, or is in imminent danger of 447 becoming, a victim of exploitation because the respondent has: 448 ...(describe in the spaces below the incidents or threats of 449 exploitation).... 450 18.10.The following describes the petitioner’s knowledge 451 of the vulnerable adult’s dependence on the respondent for care; 452 alternative provisions for the vulnerable adult’s care in the 453 absence of the respondent, if necessary; available resources the 454 vulnerable adult has to access such alternative provisions; and 455 the vulnerable adult’s willingness to use such alternative 456 provisions: .... 457 19.11.The petitioner knows the vulnerable adult maintains 458 assets, accounts, or lines of credit at the following financial 459 institution(s): ...(list name, address, and account number of 460 each).... 461 20.12.The petitioner believes that the vulnerable adult’s 462 assets to be frozen are: ...(mark one).... 463 ....Worth less than $1500; 464 ....Worth between $1500 and $5000; or 465 ....Worth more than $5000. 466 21.13.The petitioner genuinely fears imminent exploitation 467 of the vulnerable adult by the respondent. 468 22.14.The petitioner seeks an injunction for the 469 protection of the vulnerable adult, including: ...(mark 470 appropriate section or sections).... 471 ....Prohibiting the respondent from having any direct or 472 indirect contact with the vulnerable adult. 473 ....Immediately restraining the respondent from committing 474 any acts of exploitation against the vulnerable adult. 475 ....Freezing the assets of the vulnerable adult held at 476 ...(name and address of depository or financial institution)... 477 even if titled jointly with the respondent, or in the 478 respondent’s name only, in the court’s discretion. 479 ....Freezing the credit lines of the vulnerable adult at 480 ...(name and address of financial institution)... even if 481 jointly with the respondent, in the court’s discretion. 482 ....Providing any terms the court deems necessary for the 483 protection of the vulnerable adult or his or her assets, 484 including any injunctions or directives to law enforcement 485 agencies. 486 23.15.Should the court enter an injunction freezing assets 487 and credit lines, the petitioner believes that the critical 488 expenses of the vulnerable adult will be paid for or provided by 489 the following persons or entities, or the petitioner requests 490 that the following expenses be paid notwithstanding the freeze: 491 ...(for each expense, list the name of the payee, address, 492 account number if known, amount, and a brief explanation of why 493 payment is critical).... 494 (5) TEMPORARY INJUNCTION; SERVICE; HEARING.— 495 (d) An ex parte temporary injunction may be effective for a 496 fixed period not to exceed 15 days unless good cause is shown to 497 extend the injunction. The ex parte temporary injunction may be 498 extended one time for up to an additional 30 days. A full 499 hearing, as provided by this section, must be set for a date no 500 later than the date when the ex parte temporary injunction 501 ceases to be effective.The court may grant a continuance of the502hearing, before or during the hearing, for good cause shown by503any party, which good cause may include a continuance to obtain504service of process. An ex parte injunction is not extended505beyond the initial 15 days as a result of a continuance.506 Section 9. This act shall take effect July 1, 2021.