Florida Senate - 2021                                    SB 1344
       
       
        
       By Senator Burgess
       
       
       
       
       
       20-00359C-21                                          20211344__
    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 or survivorship interest if the
   17         victim executes a specified instrument; amending s.
   18         736.1104, F.S.; providing that a beneficiary of a
   19         trust may not benefit under the trust if the person
   20         was convicted of certain offenses involving elderly
   21         persons or disabled adults; amending s. 825.101, F.S.;
   22         defining terms; amending s. 825.102, F.S.; specifying
   23         additional conduct that constitutes abuse of an
   24         elderly person or a disabled adult; providing a
   25         defense to certain violations; providing criminal
   26         penalties; amending s. 825.103, F.S.; specifying
   27         additional conduct that constitutes exploitation of an
   28         elderly person or a disabled adult; providing criminal
   29         penalties; amending s. 825.1035, F.S.; revising
   30         provisions concerning injunctions for protection
   31         against exploitation of a vulnerable adult; providing
   32         for extension of ex parte temporary injunctions;
   33         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 of abuse, neglect, or exploitation
  103  of an elderly person or a disabled adult.
  104         (c)(b) Is mentally or physically unable to perform the
  105  duties.
  106         (d)(c) Is under the age of 18 years.
  107         Section 3. Section 732.8031, Florida Statutes, is created
  108  to read:
  109         732.8031Forfeiture for abuse, neglect, exploitation, or
  110  aggravated manslaughter of an elderly person or disabled adult.—
  111         (1)A surviving person who is convicted of abuse, neglect,
  112  or exploitation under s. 825.102 or s. 825.103 or aggravated
  113  manslaughter under s. 782.07(2) of the decedent or another
  114  person on whose death such beneficiary’s interest depends is not
  115  entitled to any benefits under the will of the decedent or the
  116  Florida Probate Code, and the estate of the decedent passes as
  117  if the abuser, neglector, exploiter, or killer had predeceased
  118  the decedent. Property appointed by the will of the decedent to
  119  or for the benefit of the abuser, neglector, exploiter, or
  120  killer passes as if the abuser, neglector, exploiter, or killer
  121  had predeceased the decedent.
  122         (a)A final judgment of conviction for abuse, neglect,
  123  exploitation, or aggravated manslaughter of the decedent or
  124  other person creates a rebuttable presumption that this section
  125  applies.
  126         (b)In the absence of a qualifying conviction, the court
  127  may determine by the greater weight of the evidence whether the
  128  decedent’s or other person’s death was caused by or contributed
  129  to by the abuser, neglector, exploiter, or killer for purposes
  130  of this section.
  131         (2)A joint tenant who is convicted of abuse, neglect, or
  132  exploitation under s. 825.102 or s. 825.103 or aggravated
  133  manslaughter under s. 782.07(2) of another joint tenant decedent
  134  thereby effects a severance of the interest of the decedent so
  135  that the share of the decedent passes as the decedent’s sole
  136  property and as if the abuser, neglector, exploiter, or killer
  137  has no rights by survivorship. This subsection applies to joint
  138  tenancies with right of survivorship and tenancies by the
  139  entirety in real and personal property; joint and multiple-party
  140  accounts in banks, savings and loan associations, credit unions,
  141  and other financial institutions; and any other form of
  142  coownership with survivorship interests.
  143         (a)A final judgment of conviction for abuse, neglect,
  144  exploitation, or aggravated manslaughter of the decedent or
  145  other person creates a rebuttable presumption that this section
  146  applies.
  147         (b)In the absence of a qualifying conviction, the court
  148  may determine by the greater weight of the evidence whether the
  149  decedent’s or other person’s death was caused by or contributed
  150  to by the abuser, neglector, exploiter, or killer for purposes
  151  of this section.
  152         (3)A named beneficiary of a bond, life insurance policy,
  153  or other contractual arrangement who is convicted of abuse,
  154  neglect, or exploitation under s. 825.102 or s. 825.103 or
  155  aggravated manslaughter under s. 782.07(2) of the owner or
  156  principal obligee of the bond, life insurance policy, or other
  157  contractual arrangement or the person upon whose life such
  158  policy was issued is not entitled to any benefit under the bond,
  159  policy, or other contractual arrangement, and the bond, policy,
  160  or other contractual arrangement becomes payable as though the
  161  abuser, neglector, exploiter, or killer had predeceased the
  162  decedent.
  163         (a)A final judgment of conviction for abuse, neglect,
  164  exploitation, or aggravated manslaughter of the decedent or
  165  other person creates a rebuttable presumption that this section
  166  applies.
  167         (b)In the absence of a qualifying conviction, the court
  168  may determine by the greater weight of the evidence whether the
  169  decedent’s or other person’s death was caused by or contributed
  170  to by the abuser, neglector, exploiter, or killer for purposes
  171  of this section.
  172         (4)Any other acquisition of property or interest by the
  173  abuser, neglector, exploiter, or killer, including a life estate
  174  in homestead property, shall be treated in accordance with the
  175  principles of this section.
  176         (5)(a)This section does not affect the rights of any
  177  person who, before rights under this section have been
  178  adjudicated, purchases from the abuser, neglector, exploiter, or
  179  killer for value and without notice property that the abuser,
  180  neglector, exploiter, or killer would have acquired except for
  181  this section.
  182         (b)The abuser, neglector, exploiter, or killer is liable
  183  for the amount of the proceeds or the value of the property
  184  under paragraph (a).
  185         (6)Any insurance company, bank, or other obligor making
  186  payment according to the terms of its policy or obligation is
  187  not liable by reason of this section unless before payment it
  188  receives at its home office or principal address written notice
  189  of a claim under this section.
  190         (7)This section does not apply if, after the conviction of
  191  abuse, neglect, or exploitation, the victim of the offense, if
  192  capacitated, executes a written instrument, sworn to and
  193  witnessed by two persons who would be competent as witnesses to
  194  a will, which expresses a specific intent to allow the person so
  195  convicted of abuse, neglect, or exploitation to retain his or
  196  her inheritance or survivorship rights.
  197         Section 4. Subsection (3) is added to section 736.1104,
  198  Florida Statutes, to read:
  199         736.1104 Person Killer not entitled to receive property or
  200  other benefits by reason of victim’s death.—
  201         (3)A beneficiary of a trust who was convicted of abuse,
  202  neglect, or exploitation under s. 825.102 or s. 825.103 or
  203  aggravated manslaughter under s. 782.07(2) of a settlor or
  204  another person on whose death such beneficiary’s interest
  205  depends is not entitled to any trust interest, including a
  206  homestead dependent on the victim’s death, and such interest
  207  shall devolve as though the abuser, neglecter, exploiter, or
  208  killer had predeceased the victim.
  209         (a)A final judgment of conviction for abuse, neglect,
  210  exploitation, or aggravated manslaughter of the decedent or
  211  other person creates a rebuttable presumption that this section
  212  applies.
  213         (b)In the absence of a qualifying conviction, the court
  214  may determine by the greater weight of the evidence whether the
  215  decedent’s or other person’s death was either caused by or
  216  contributed to by the abuser, neglector, exploiter, or killer
  217  for purposes of this section.
  218         Section 5. Subsections (8) through (14) of section 825.101,
  219  Florida Statutes, are renumbered as subsections (10) through
  220  (16), respectively, and new subsections (8) and (9) are added to
  221  that section, to read:
  222         825.101 Definitions.—As used in this chapter:
  223         (8)“Improper benefit” means any remuneration or payment,
  224  by or on behalf of any service provider or merchant of goods, to
  225  any person as an incentive or inducement to refer customers or
  226  patrons for past or future services or goods.
  227         (9)“Kickback” has the same meaning as in s. 456.054(1).
  228         Section 6. Paragraphs (b) and (c) of subsection (1) of
  229  section 825.102, Florida Statutes, are amended, and paragraph
  230  (d) is added to that subsection, to read:
  231         825.102 Abuse, aggravated abuse, and neglect of an elderly
  232  person or disabled adult; penalties.—
  233         (1) “Abuse of an elderly person or disabled adult” means:
  234         (b) An intentional act that could reasonably be expected to
  235  result in physical or psychological injury to an elderly person
  236  or disabled adult; or
  237         (c) Active encouragement of any person to commit an act
  238  that results or could reasonably be expected to result in
  239  physical or psychological injury to an elderly person or
  240  disabled adult; or
  241         (d)Intentionally, and without lawful authority, isolating
  242  or restricting access of an elderly person or a disabled adult
  243  to family members for any length of time which could reasonably
  244  be expected to result in physical or psychological injury to the
  245  elderly person or disabled adult, or with the intent to promote,
  246  facilitate, conceal, or disguise some form of criminal activity
  247  involving the person or property of the elderly person or
  248  disabled adult. It is a defense to a violation of this paragraph
  249  that the defendant had reasonable cause to believe that his or
  250  her action was necessary to protect the elderly person or
  251  disabled adult from danger to his or her welfare.
  252  
  253  A person who knowingly or willfully abuses an elderly person or
  254  disabled adult without causing great bodily harm, permanent
  255  disability, or permanent disfigurement to the elderly person or
  256  disabled adult commits a felony of the third degree, punishable
  257  as provided in s. 775.082, s. 775.083, or s. 775.084.
  258         Section 7. Paragraphs (c), (d), and (e) of subsection (1)
  259  of section 825.103, Florida Statutes, are amended, and paragraph
  260  (f) is added to that subsection, to read:
  261         825.103 Exploitation of an elderly person or disabled
  262  adult; penalties.—
  263         (1) “Exploitation of an elderly person or disabled adult”
  264  means:
  265         (c) Breach of a fiduciary duty to an elderly person or
  266  disabled adult by the person’s guardian, trustee who is an
  267  individual, or agent under a power of attorney which results in
  268  an unauthorized appropriation, sale, or transfer of property,
  269  kickback, or receipt of an improper benefit. An unauthorized
  270  appropriation under this paragraph occurs when the elderly
  271  person or disabled adult does not receive the reasonably
  272  equivalent financial value in goods or services, or when the
  273  fiduciary violates any of these duties:
  274         1. For agents appointed under chapter 709:
  275         a. Committing fraud in obtaining their appointments;
  276         b.Obtaining appointments with the purpose and design of
  277  benefiting someone other than the principal or beneficiary;
  278         c.b. Abusing their powers;
  279         d.c. Wasting, embezzling, or intentionally mismanaging the
  280  assets of the principal or beneficiary; or
  281         e.d. Acting contrary to the principal’s sole benefit or
  282  best interest; or
  283         2. For guardians and trustees who are individuals and who
  284  are appointed under chapter 736 or chapter 744:
  285         a. Committing fraud in obtaining their appointments;
  286         b.Obtaining appointments with the purpose and design of
  287  benefiting someone other than the principal or beneficiary;
  288         c.b. Abusing their powers; or
  289         d.c. Wasting, embezzling, or intentionally mismanaging the
  290  assets of the ward or beneficiary of the trust;
  291         (d) Misappropriating, misusing, or transferring without
  292  authorization money belonging to an elderly person or disabled
  293  adult from an account in which the elderly person or disabled
  294  adult placed the funds, owned the funds, and was the sole
  295  contributor or payee of the funds before the misappropriation,
  296  misuse, or unauthorized transfer. This paragraph only applies to
  297  the following types of accounts:
  298         1. Personal accounts;
  299         2. Joint accounts created with the intent that only the
  300  elderly person or disabled adult enjoys all rights, interests,
  301  and claims to moneys deposited into such account; or
  302         3. Convenience accounts created in accordance with s.
  303  655.80; or
  304         (e) Intentionally or negligently failing to effectively use
  305  an elderly person’s or disabled adult’s income and assets for
  306  the necessities required for that person’s support and
  307  maintenance, by a caregiver or a person who stands in a position
  308  of trust and confidence with the elderly person or disabled
  309  adult; or
  310         (f)Knowingly obtaining or using, endeavoring to obtain or
  311  use, or conspiring with another to obtain or use an elderly
  312  person’s or a disabled adult’s funds, assets, property, or
  313  estate through intentional modification or alteration of a plan
  314  of distribution or disbursement expressed in a will, trust
  315  agreement, or other testamentary devise of the elderly person or
  316  disabled adult without:
  317         1.A court order, from a court having jurisdiction over the
  318  elderly person or disabled adult, which authorizes the
  319  modification or alteration;
  320         2.A written instrument executed by the elderly person or
  321  disabled adult, sworn to and witnessed by two persons who would
  322  be competent as witnesses to a will, which authorizes the
  323  modification or alteration; or
  324         3.Action of an agent under a valid power of attorney
  325  executed by the elderly person or disabled adult which
  326  authorizes the modification or alteration.
  327         Section 8. Paragraph (a) of subsection (2), paragraph (a)
  328  of subsection (3), and paragraph (d) of subsection (5) of
  329  section 825.1035, Florida Statutes, are amended to read:
  330         825.1035 Injunction for protection against exploitation of
  331  a vulnerable adult.—
  332         (2) WHO MAY FILE; VENUE; RECORDING.—
  333         (a) The cause of action may be sought in an adversary
  334  proceeding by:
  335         1. A vulnerable adult in imminent danger of being
  336  exploited;
  337         2. The guardian of a vulnerable adult in imminent danger of
  338  being exploited;
  339         3. A person or organization acting on behalf of the
  340  vulnerable adult with the consent of the vulnerable adult or his
  341  or her guardian; or
  342         4.An agent under a valid durable power of attorney with
  343  the authority specifically granted in the power of attorney; or
  344         5.4. A person who simultaneously files a petition for
  345  determination of incapacity and appointment of an emergency
  346  temporary guardian with respect to the vulnerable adult.
  347         (3) FORM OF PETITION.—
  348         (a) A sworn petition filed under this section must allege
  349  the existence of exploitation, or the imminent exploitation, of
  350  the vulnerable adult and must include the specific facts and
  351  circumstances for which relief is sought. The sworn petition
  352  must be in substantially the following form:
  353  
  354               PETITION FOR INJUNCTION FOR PROTECTION              
  355             AGAINST EXPLOITATION OF A VULNERABLE ADULT            
  356  
  357  Before me, the undersigned authority, personally appeared
  358  Petitioner ...(Name)..., who has been sworn and says that the
  359  following statements are true:
  360         1.The petitioner’s name is: _____________________________
  361         2.The petitioner’s address is: __________________________
  362         3. The petitioner’s relationship to the vulnerable adult
  363  is: _______________________
  364         4. How long has the petitioner known the vulnerable adult:
  365  ___________________________
  366         5. The vulnerable adult’s name is: _______________________
  367         6. Aliases of the vulnerable adult are: __________________
  368         7. The vulnerable adult’s date of birth is: _________
  369         8.1. The vulnerable adult’s address is adult resides at:
  370  ____________________________ ...(address)....
  371         9. Does the vulnerable adult have one or more impairments
  372  that impact his or her ability to perform normal activities of
  373  daily living or to provide for his or her own care or
  374  protection?
  375         Yes______	No______
  376         If so, what are this person’s impairments? (check all that
  377  apply)
  378         .... Long-term physical disability
  379         .... Sensory disability (e.g., hearing or vision impaired)
  380         .... Cognitive disability
  381         .... Mental or emotional disability
  382         .... Developmental disability
  383         .... Infirmity of aging
  384         .... Other (explain)
  385         10.2. The respondent’s last known address is respondent
  386  resides at: _____________________ ...(last known address)....
  387         11.3. The respondent’s last known place of employment is:
  388  ...(name of business and address)....
  389         12.4. Physical description of the respondent: ....
  390         Race....
  391         Sex....
  392         Date of birth....
  393         Height....
  394         Weight....
  395         Eye color....
  396         Hair color....
  397         Distinguishing marks or scars....
  398         13.5. Aliases of the respondent: ....
  399         14.6. The respondent is associated with the vulnerable
  400  adult as follows: ....
  401         15.7. The following describes any other cause of action
  402  currently pending between the petitioner and the respondent, any
  403  proceeding under chapter 744 concerning the vulnerable adult,
  404  and any previous or pending attempts by the petitioner to obtain
  405  an injunction for protection against exploitation of the
  406  vulnerable adult in this or any other circuit; related case
  407  numbers, if available; and the results of any such
  408  attempts:......................................................
  409  .........
  410         16.8. The following describes the petitioner’s knowledge of
  411  any reports made to a government agency, including, but not
  412  limited to, the Department of Elderly Affairs, the Department of
  413  Children and Families, and the adult protective services program
  414  relating to the abuse, neglect, or exploitation of the
  415  vulnerable adult; any investigations performed by a government
  416  agency relating to abuse, neglect, or exploitation of the
  417  vulnerable adult; and the results of any such reports or
  418  investigations: ....
  419         17.9. The petitioner knows the vulnerable adult is either a
  420  victim of exploitation or the petitioner has reasonable cause to
  421  believe the vulnerable adult is, or is in imminent danger of
  422  becoming, a victim of exploitation because the respondent has:
  423  ...(describe in the spaces below the incidents or threats of
  424  exploitation)....
  425         18.10. The following describes the petitioner’s knowledge
  426  of the vulnerable adult’s dependence on the respondent for care;
  427  alternative provisions for the vulnerable adult’s care in the
  428  absence of the respondent, if necessary; available resources the
  429  vulnerable adult has to access such alternative provisions; and
  430  the vulnerable adult’s willingness to use such alternative
  431  provisions: ....
  432         19.11. The petitioner knows the vulnerable adult maintains
  433  assets, accounts, or lines of credit at the following financial
  434  institution(s): ...(list name, address, and account number of
  435  each)....
  436         20.12. The petitioner believes that the vulnerable adult’s
  437  assets to be frozen are: ...(mark one)....
  438         ....Worth less than $1500;
  439         ....Worth between $1500 and $5000; or
  440         ....Worth more than $5000.
  441         21.13. The petitioner genuinely fears imminent exploitation
  442  of the vulnerable adult by the respondent.
  443         22.14. The petitioner seeks an injunction for the
  444  protection of the vulnerable adult, including: ...(mark
  445  appropriate section or sections)....
  446         ....Prohibiting the respondent from having any direct or
  447  indirect contact with the vulnerable adult.
  448         ....Immediately restraining the respondent from committing
  449  any acts of exploitation against the vulnerable adult.
  450         ....Freezing the assets of the vulnerable adult held at
  451  ...(name and address of depository or financial institution)...
  452  even if titled jointly with the respondent, or in the
  453  respondent’s name only, in the court’s discretion.
  454         ....Freezing the credit lines of the vulnerable adult at
  455  ...(name and address of financial institution)... even if
  456  jointly with the respondent, in the court’s discretion.
  457         ....Providing any terms the court deems necessary for the
  458  protection of the vulnerable adult or his or her assets,
  459  including any injunctions or directives to law enforcement
  460  agencies.
  461         23.15. Should the court enter an injunction freezing assets
  462  and credit lines, the petitioner believes that the critical
  463  expenses of the vulnerable adult will be paid for or provided by
  464  the following persons or entities, or the petitioner requests
  465  that the following expenses be paid notwithstanding the freeze:
  466  ...(for each expense, list the name of the payee, address,
  467  account number if known, amount, and a brief explanation of why
  468  payment is critical)....
  469         (5) TEMPORARY INJUNCTION; SERVICE; HEARING.—
  470         (d) An ex parte temporary injunction may be effective for a
  471  fixed period not to exceed 15 days unless good cause is shown to
  472  extend the injunction. The ex parte temporary injunction may be
  473  extended one time for up to an additional 30 days. A full
  474  hearing, as provided by this section, must be set for a date no
  475  later than the date when the ex parte temporary injunction
  476  ceases to be effective. The court may grant a continuance of the
  477  hearing, before or during the hearing, for good cause shown by
  478  any party, which good cause may include a continuance to obtain
  479  service of process. An ex parte injunction is not extended
  480  beyond the initial 15 days as a result of a continuance.
  481         Section 9. This act shall take effect July 1, 2021.