PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Injunction For Protection Against Exploitation

Watch out exploiters, there is a new statute in town to protect the elderly – §825.1035, F.S.! This statute creates a cause of action for an injunction for protection against the exploitation of a vulnerable adult. Sec. 825.1036, F.S. pertains to enforcement of the injunction. If approved by the Governor, these statutes will take effect on July 1, 2018.[1]

EX PARTE TEMPORARY INJUNCTION: Pursuant to §825.1035(5), the court may grant an ex parte temporary injunction for the following relief:

  1. Restraining the respondent [exploiter] from committing any acts of exploitation against the vulnerable adult;
  2. Awarding to the vulnerable adult the temporary exclusive use and possession of the dwelling that the vulnerable adult and the respondent share, or barring the respondent from the residence of the vulnerable adult;
  3. Freezing any assets of the vulnerable adult in any depository or financial institution whether titled solely in the vulnerable adult’s name, solely in the respondent’s name, jointly with the respondent, in guardianship, in trust, or in a Totten trust;
  4. Freezing any line of credit of the vulnerable adult at any depository or financial institution whether listed solely in the vulnerable adult’s name or jointly with the respondent;
  5. Prohibiting the respondent from having any direct or indirect contact with the vulnerable adult; or
  6. Providing any injunctions or directives to law enforcement agencies.

WHO MAY FILE? The cause of action for an injunction may be sought by:

  1. A vulnerable adult in imminent danger of being exploited;
  2. The guardian of a vulnerable adult in imminent danger of being exploited;
  3. A person or organization acting on behalf of the vulnerable adult with the consent of the vulnerable adult or his or her guardian; or
  4. A person who simultaneously files a petition for determination of incapacity and appointment of an emergency temporary guardian with respect to the vulnerable adult.

FINAL HEARING: At the final hearing, the court may grant such relief as the court deems proper, including, but need not be limited to, injunctions doing any of the following:

  1. Continuing the temporary injunction in part or in whole;
  2. Restraining the respondent from committing any acts of exploitation;
  3. Awarding to the vulnerable adult the exclusive use and possession of the dwelling that the vulnerable adult and the respondent share or excluding the respondent from the residence of the vulnerable adult, if the court finds that the vulnerable adult is able to reside safely without the respondent;
  4. Ordering the respondent to participate in treatment, intervention, or counseling services to be paid for by the respondent;
  5. Directing that assets under temporary freeze by injunction be returned to the vulnerable adult, or directing that those assets remain frozen until ownership can be determined; and directing that the temporary freeze on any line of credit be lifted;
  6. Where the court has found that the respondent ha engaged in exploitation of the vulnerable adult, entering a final cost judgment against the respondent and in favor of the petitioner for all costs, and entering a final cost judgment against the respondent and in favor of the clerk of the circuit court for all clerk’s filing fees and service charges that were waived by operation of this section; or
  7. Ordering such other relief as the court deems necessary for the protection of a victim of exploitation, including injunctions or directives to law enforcement agencies, as provided in this section.

POLICE ASSISTANCE: “When an injunction for protection against the exploitation of a vulnerable adult is issued, if the petitioner requests that a law enforcement agency assist the vulnerable adult, the court may order that an officer from the appropriate law enforcement agency accompany the vulnerable adult and assist in the service or execution of the injunction, including returning possession of a dwelling or residence to the vulnerable adult.” Refer to §825.1035(10)(a)3, F.S.

ENFORCEMENT [§825.1036]: “The court may enforce a violation of an injunction for protection against the exploitation of a vulnerable adult through a civil orcriminal contempt proceeding, and the state attorney may prosecute it as a criminal violation under s.825.1036 [Emphasis added].” “If the respondent is arrested by a law enforcement officer under s.901.15(6) or for a violation of s.825.1036, the respondent must be held in custody until he or she is brought before the court, which must occur as expeditiously as possible, for the purpose of enforcing the injunction for protection against the exploitation of a vulnerable adult and for admittance to bail in accordance with chapter and the applicable rules of criminal procedure, pending a hearing.” Refer to §825.1035(11), F.S.

WRONGFUL FILING: “Actual damages may be assessed in a proceeding under this section if the court finds that the petition was without substantial fact or legal support.” Refer to §825.1035(12), F.S.

[1] As of 2/19/18, these statutes were still under review by the House [HB 1059 (2018)] and Senate [SB 1562 (2018)]. This article merely summarizes certain aspects of the current drafts of §§825.1035 and 825.1036, F.S. and is not meant to be a detailed summary of the final version of both statutes, which are extensive.