Florida Estate Planning Lawyer Blog
Elder law is one of the most important legal fields in Florida because it helps address the unique needs of this state’s large elderly population. One of the growing concerns in the legal community is the rise of elder abuse. The abuse is frequently under-reported, and worse, the abusers are the persons that often benefit from the abuse.
The elder law attorneys at The Law Office of David M. Goldman PLLC frequently come across older clients that have suffered some form of physical or emotional abuse that allows the abuser to exploit the client. Tragically, the abuser is often a person close to the client such as a family member or a close friend. Studies show that elder abuse is a growing problem in Florida and areas like Jacksonville and Ponte Vedra.
Why Are The Current Laws Not Enough?
Florida is one of the few states that directly address elder abuse. However, the current law has left one issue unanswered. Should a person that abuses an elder be able to inherit from the victim after this person dies? Let’s illustrate this problem through an example.
For example, a granddaughter is convicted of elder abuse and sentenced to a prison term for abusing her authority under a power of attorney. The granddaughter used the power of attorney to take a vacation to Las Vegas against the instructions of her grandmother’s power of attorney.
At first glance, the granddaughter seems to get punished because she is serving jail time. However, under current statutes, the granddaughter can still inherit from the client. So if the granddaughter files a probate petition in jail she could potentially still inherit from the elder she financially abused.
Before going over how the law might change, it is important to note Florida has some of the most progressive elder law statues in the United States. For example, Florida Statute Chapter 415 was enacted to criminalize elder abuse, neglect, and exploitation. It also allows for the Department of Children and Families to receive and investigate reports of abuse.
This chapter also allows police officers to investigate elder abuse, and it creates a civil cause of action for abused elders to recover. Further, Florida legislature recently amended Chapter 825 to strengthen and broaden the scope of criminal penalties for those convicted of elder abuse.
How The Law Should be Change
However, as the example above illustrates, the current law does not address the issue of whether the person that commits elder abuse should be allowed to inherit from the victim. The current laws allow this to happen because the person that abuses the victim is often a close family member. Therefore, we propose the law should be amended to allow a disinheritance statute.
Under the new law, we propose that a person convicted of elder abuse should not be allowed to inherit from the victim. This would be for all forms of elder abuse including physical and sexual abuse, neglect, or financial exploitation.
The next issue is the scope of the disinheritance if this amendment is accepted. Should the abuser be totally barred from inheritance, or should their inheritance be reduced by the amount of the civil judgment against the person? We feel the best way to curb elder abuse is a complete bar of inheritance once a person is convicted of the crime or faces a civil judgment.
Another issue is what the burden of proof should be for this new disinheritance statute. The attorneys here feel the burden of proof should be lower than a criminal conviction because cases of elder abuse do not go to criminal trial very often. Despite the abuse, many elders do not want to press charges against their family members or friends. Also, many clients state they would feel embarrassed if the public knew they had been abused.
We propose the burden of proof should be a lesser standard such as a preponderance of the evidence. The court could look at the evidence of the abuse and decide that is more likely than not abuse took place.
However, despite the abuse, many clients continue to care and love for those that committed elder abuse against them. This is why we feel the laws should have a ratification clause for the victims. This clause would allow victims to include the abuser in the victim’s estate plan regardless of that person’s past wrongs. This allows the parties to make up and make things right with each other after the abuse has occurred.
For more information on elder abuse contact the elder law and estate planning attorneys at The Law Office of David M. Goldman PLLC today.