Florida Senate - 2021                             CS for SB 1344
       
       
        
       By the Committee on Criminal Justice; and Senator Burgess
       
       
       
       
       
       591-03248-21                                          20211344c1
    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 in any state or other 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         732.8031Forfeiture for abuse, neglect, exploitation, or
  111  aggravated manslaughter of an elderly person or disabled adult.—
  112         (1)A surviving person who is convicted in any state or
  113  other jurisdiction of abuse, neglect, exploitation, or
  114  aggravated manslaughter of an elderly person or disabled adult,
  115  as those terms are defined in s. 825.101, for conduct against
  116  the decedent or another person on whose death such beneficiary’s
  117  interest depends is not entitled to any benefits under the will
  118  of the decedent or the Florida Probate Code, and the estate of
  119  the decedent passes as if the abuser, neglector, exploiter, or
  120  killer had predeceased the decedent. Property appointed by the
  121  will of the decedent to or for the benefit of the abuser,
  122  neglector, exploiter, or killer passes as if the abuser,
  123  neglector, exploiter, or killer had predeceased the decedent.
  124         (a)A conviction for abuse, neglect, exploitation, or
  125  aggravated manslaughter of the decedent or other person creates
  126  a rebuttable presumption that this section applies.
  127         (b)In the absence of a qualifying conviction, the court
  128  may determine by the greater weight of the evidence whether the
  129  decedent’s or other person’s death was caused by or contributed
  130  to by the conduct of the abuser or neglector as those terms are
  131  described in s. 825.102, exploiter as described in s. 825.103,
  132  or killer as provided in s. 782.07.
  133         (2)A joint tenant who is convicted in any state or other
  134  jurisdiction of abuse, neglect, exploitation, or aggravated
  135  manslaughter of an elderly person or disabled adult, as those
  136  terms are defined in s. 825.101, for conduct against another
  137  joint tenant decedent thereby effects a severance of the
  138  interest of the decedent so that the share of the decedent
  139  passes as the decedent’s sole property and as if the abuser,
  140  neglector, exploiter, or killer has no rights by survivorship.
  141  This subsection applies to joint tenancies with right of
  142  survivorship and tenancies by the entirety in real and personal
  143  property; joint and multiple-party accounts in banks, savings
  144  and loan associations, credit unions, and other financial
  145  institutions; and any other form of coownership with
  146  survivorship interests.
  147         (a)A conviction for abuse, neglect, exploitation, or
  148  aggravated manslaughter of the decedent or other person creates
  149  a rebuttable presumption that this section applies.
  150         (b)In the absence of a qualifying conviction, the court
  151  may determine by the greater weight of the evidence whether the
  152  decedent’s or other person’s death was caused by or contributed
  153  to by the conduct of the abuser or neglector as those terms are
  154  described in s. 825.102, exploiter as described in s. 825.103,
  155  or killer as provided in s. 782.07.
  156         (3)A named beneficiary of a bond, life insurance policy,
  157  or other contractual arrangement who is convicted in any state
  158  or other jurisdiction of abuse, neglect, exploitation, or
  159  aggravated manslaughter of an elderly person or disabled adult,
  160  as those terms are defined in s. 825.101, for conduct against
  161  the owner or principal obligee of the bond, life insurance
  162  policy, or other contractual arrangement or the person upon
  163  whose life such policy was issued is not entitled to any benefit
  164  under the bond, policy, or other contractual arrangement, and
  165  the bond, policy, or other contractual arrangement becomes
  166  payable as though the abuser, neglector, exploiter, or killer
  167  had predeceased the decedent.
  168         (a)A conviction for abuse, neglect, exploitation, or
  169  aggravated manslaughter of the decedent or other person creates
  170  a rebuttable presumption that this section applies.
  171         (b)In the absence of a qualifying conviction, the court
  172  may determine by the greater weight of the evidence whether the
  173  decedent’s or other person’s death was caused by or contributed
  174  to by the conduct of the abuser or neglector as those terms are
  175  described in s. 825.102, exploiter as described in s. 825.103,
  176  or killer as provided in s. 782.07.
  177         (4)Any other acquisition of property or interest by the
  178  abuser, neglector, exploiter, or killer, including a life estate
  179  in homestead property, shall be treated in accordance with the
  180  principles of this section.
  181         (5)(a)This section does not affect the rights of any
  182  person who, before rights under this section have been
  183  adjudicated, purchases from the abuser, neglector, exploiter, or
  184  killer for value and without notice property that the abuser,
  185  neglector, exploiter, or killer would have acquired except for
  186  this section.
  187         (b)The abuser, neglector, exploiter, or killer is liable
  188  for the amount of the proceeds or the value of the property
  189  under paragraph (a).
  190         (6)Any insurance company, bank, or other obligor making
  191  payment according to the terms of its policy or obligation is
  192  not liable by reason of this section unless before payment it
  193  receives at its home office or principal address written notice
  194  of a claim under this section.
  195         (7)This section does not apply if, after the conviction of
  196  abuse, neglect, or exploitation, the victim of the offense, if
  197  capacitated, executes a written instrument, sworn to and
  198  witnessed by two persons who would be competent as witnesses to
  199  a will, which expresses a specific intent to allow the person so
  200  convicted of abuse, neglect, or exploitation to retain his or
  201  her inheritance or survivorship rights.
  202         Section 4. Subsection (3) is added to section 736.1104,
  203  Florida Statutes, to read:
  204         736.1104 Person Killer not entitled to receive property or
  205  other benefits by reason of victim’s death.—
  206         (3)A beneficiary of a trust who was convicted in any state
  207  or other jurisdiction of abuse, neglect, exploitation, or
  208  aggravated manslaughter of an elderly person or disabled adult,
  209  as those terms are defined in s. 825.101, for conduct against a
  210  settlor or another person on whose death such beneficiary’s
  211  interest depends is not entitled to any trust interest,
  212  including a homestead dependent on the victim’s death, and such
  213  interest shall devolve as though the abuser, neglecter,
  214  exploiter, or killer had predeceased the victim.
  215         (a)A conviction for abuse, neglect, exploitation, or
  216  aggravated manslaughter of the decedent or other person creates
  217  a rebuttable presumption that this section applies.
  218         (b)In the absence of a qualifying conviction, the court
  219  may determine by the greater weight of the evidence whether the
  220  decedent’s or other person’s death was caused by or contributed
  221  to by the conduct of the abuser or neglector as those terms are
  222  described in s. 825.102, exploiter as described in s. 825.103,
  223  or killer as provided in s. 782.07.
  224         Section 5. Present subsections (8) through (14) of section
  225  825.101, Florida Statutes, are redesignated as subsections (10)
  226  through (16), respectively, and new subsections (8) and (9) are
  227  added to that section, to read:
  228         825.101 Definitions.—As used in this chapter:
  229         (8)“Improper benefit” means any remuneration or payment,
  230  by or on behalf of any service provider or merchant of goods, to
  231  any person as an incentive or inducement to refer customers or
  232  patrons for past or future services or goods.
  233         (9)“Kickback” has the same meaning as in s. 456.054(1).
  234         Section 6. Paragraphs (b) and (c) of subsection (1) of
  235  section 825.102, Florida Statutes, are amended, and paragraph
  236  (d) is added to that subsection, to read:
  237         825.102 Abuse, aggravated abuse, and neglect of an elderly
  238  person or disabled adult; penalties.—
  239         (1) “Abuse of an elderly person or disabled adult” means:
  240         (b) An intentional act that could reasonably be expected to
  241  result in physical or psychological injury to an elderly person
  242  or disabled adult; or
  243         (c) Active encouragement of any person to commit an act
  244  that results or could reasonably be expected to result in
  245  physical or psychological injury to an elderly person or
  246  disabled adult; or
  247         (d)Intentionally, and without lawful authority, isolating
  248  or restricting access of an elderly person or a disabled adult
  249  to family members for any length of time which could reasonably
  250  be expected to result in physical or psychological injury to the
  251  elderly person or disabled adult, or with the intent to promote,
  252  facilitate, conceal, or disguise some form of criminal activity
  253  involving the person or property of the elderly person or
  254  disabled adult. It is a defense to a violation of this paragraph
  255  that the defendant had reasonable cause to believe that his or
  256  her action was necessary to protect the elderly person or
  257  disabled adult from danger to his or her welfare.
  258  
  259  A person who knowingly or willfully abuses an elderly person or
  260  disabled adult without causing great bodily harm, permanent
  261  disability, or permanent disfigurement to the elderly person or
  262  disabled adult commits a felony of the third degree, punishable
  263  as provided in s. 775.082, s. 775.083, or s. 775.084.
  264         Section 7. Paragraphs (c), (d), and (e) of subsection (1)
  265  of section 825.103, Florida Statutes, are amended, and paragraph
  266  (f) is added to that subsection, to read:
  267         825.103 Exploitation of an elderly person or disabled
  268  adult; penalties.—
  269         (1) “Exploitation of an elderly person or disabled adult”
  270  means:
  271         (c) Breach of a fiduciary duty to an elderly person or
  272  disabled adult by the person’s guardian, trustee who is an
  273  individual, or agent under a power of attorney which results in
  274  an unauthorized appropriation, sale, or transfer of property,
  275  kickback, or receipt of an improper benefit. An unauthorized
  276  appropriation under this paragraph occurs when the elderly
  277  person or disabled adult does not receive the reasonably
  278  equivalent financial value in goods or services, or when the
  279  fiduciary violates any of these duties:
  280         1. For agents appointed under chapter 709:
  281         a. Committing fraud in obtaining their appointments;
  282         b.Obtaining appointments with the purpose and design of
  283  benefiting someone other than the principal or beneficiary;
  284         c.b. Abusing their powers;
  285         d.c. Wasting, embezzling, or intentionally mismanaging the
  286  assets of the principal or beneficiary; or
  287         e.d. Acting contrary to the principal’s sole benefit or
  288  best interest; or
  289         2. For guardians and trustees who are individuals and who
  290  are appointed under chapter 736 or chapter 744:
  291         a. Committing fraud in obtaining their appointments;
  292         b.Obtaining appointments with the purpose and design of
  293  benefiting someone other than the principal or beneficiary;
  294         c.b. Abusing their powers; or
  295         d.c. Wasting, embezzling, or intentionally mismanaging the
  296  assets of the ward or beneficiary of the trust;
  297         (d) Misappropriating, misusing, or transferring without
  298  authorization money belonging to an elderly person or disabled
  299  adult from an account in which the elderly person or disabled
  300  adult placed the funds, owned the funds, and was the sole
  301  contributor or payee of the funds before the misappropriation,
  302  misuse, or unauthorized transfer. This paragraph only applies to
  303  the following types of accounts:
  304         1. Personal accounts;
  305         2. Joint accounts created with the intent that only the
  306  elderly person or disabled adult enjoys all rights, interests,
  307  and claims to moneys deposited into such account; or
  308         3. Convenience accounts created in accordance with s.
  309  655.80; or
  310         (e) Intentionally or negligently failing to effectively use
  311  an elderly person’s or disabled adult’s income and assets for
  312  the necessities required for that person’s support and
  313  maintenance, by a caregiver or a person who stands in a position
  314  of trust and confidence with the elderly person or disabled
  315  adult; or
  316         (f)Knowingly obtaining or using, endeavoring to obtain or
  317  use, or conspiring with another to obtain or use an elderly
  318  person’s or a disabled adult’s funds, assets, property, or
  319  estate through intentional modification, alteration, or
  320  fraudulent creation of a plan of distribution or disbursement
  321  expressed in a will, trust agreement, or other testamentary
  322  devise of the elderly person or disabled adult without:
  323         1.A court order, from a court having jurisdiction over the
  324  elderly person or disabled adult, which authorizes the
  325  modification or alteration;
  326         2.A written instrument executed by the elderly person or
  327  disabled adult, sworn to and witnessed by two persons who would
  328  be competent as witnesses to a will, which authorizes the
  329  modification or alteration; or
  330         3.Action of an agent under a valid power of attorney
  331  executed by the elderly person or disabled adult which
  332  authorizes the modification or alteration.
  333         Section 8. Paragraph (a) of subsection (2), paragraph (a)
  334  of subsection (3), and paragraph (d) of subsection (5) of
  335  section 825.1035, Florida Statutes, are amended to read:
  336         825.1035 Injunction for protection against exploitation of
  337  a vulnerable adult.—
  338         (2) WHO MAY FILE; VENUE; RECORDING.—
  339         (a) The cause of action may be sought in an adversary
  340  proceeding by:
  341         1. A vulnerable adult in imminent danger of being
  342  exploited;
  343         2. The guardian of a vulnerable adult in imminent danger of
  344  being exploited;
  345         3. A person or organization acting on behalf of the
  346  vulnerable adult with the consent of the vulnerable adult or his
  347  or her guardian; or
  348         4.An agent under a valid durable power of attorney with
  349  the authority specifically granted in the power of attorney; or
  350         5.4. A person who simultaneously files a petition for
  351  determination of incapacity and appointment of an emergency
  352  temporary guardian with respect to the vulnerable adult.
  353         (3) FORM OF PETITION.—
  354         (a) A sworn petition filed under this section must allege
  355  the existence of exploitation, or the imminent exploitation, of
  356  the vulnerable adult and must include the specific facts and
  357  circumstances for which relief is sought. The sworn petition
  358  must be in substantially the following form:
  359  
  360               PETITION FOR INJUNCTION FOR PROTECTION              
  361             AGAINST EXPLOITATION OF A VULNERABLE ADULT            
  362  
  363  Before me, the undersigned authority, personally appeared
  364  Petitioner ...(Name)..., who has been sworn and says that the
  365  following statements are true:
  366         1.The petitioner’s name is: _____________________________
  367         2.The petitioner’s address is: __________________________
  368         3. The petitioner’s relationship to the vulnerable adult
  369  is: _______________________
  370         4. How long has the petitioner known the vulnerable adult:
  371  ___________________________
  372         5. The vulnerable adult’s name is: _______________________
  373         6. Aliases of the vulnerable adult are: __________________
  374         7. The vulnerable adult’s date of birth is: _________
  375         8.1. The vulnerable adult’s address is adult resides at:
  376  ____________________________ ...(address)....
  377         9. Does the vulnerable adult have one or more impairments
  378  that impact his or her ability to perform normal activities of
  379  daily living or to provide for his or her own care or
  380  protection?
  381         Yes______	No______
  382         If so, what are this person’s impairments? (check all that
  383  apply)
  384         .... Long-term physical disability
  385         .... Sensory disability (e.g., hearing or vision impaired)
  386         .... Cognitive disability
  387         .... Mental or emotional disability
  388         .... Developmental disability
  389         .... Infirmity of aging
  390         .... Other (explain)
  391         10.2. The respondent’s last known address is respondent
  392  resides at: _____________________ ...(last known address)....
  393         11.3. The respondent’s last known place of employment is:
  394  ...(name of business and address)....
  395         12.4. Physical description of the respondent: ....
  396         Race....
  397         Sex....
  398         Date of birth....
  399         Height....
  400         Weight....
  401         Eye color....
  402         Hair color....
  403         Distinguishing marks or scars....
  404         13.5. Aliases of the respondent: ....
  405         14.6. The respondent is associated with the vulnerable
  406  adult as follows: ....
  407         15.7. The following describes any other cause of action
  408  currently pending between the petitioner and the respondent, any
  409  proceeding under chapter 744 concerning the vulnerable adult,
  410  and any previous or pending attempts by the petitioner to obtain
  411  an injunction for protection against exploitation of the
  412  vulnerable adult in this or any other circuit; related case
  413  numbers, if available; and the results of any such
  414  attempts:......................................................
  415  .........
  416         16.8. The following describes the petitioner’s knowledge of
  417  any reports made to a government agency, including, but not
  418  limited to, the Department of Elderly Affairs, the Department of
  419  Children and Families, and the adult protective services program
  420  relating to the abuse, neglect, or exploitation of the
  421  vulnerable adult; any investigations performed by a government
  422  agency relating to abuse, neglect, or exploitation of the
  423  vulnerable adult; and the results of any such reports or
  424  investigations: ....
  425         17.9. The petitioner knows the vulnerable adult is either a
  426  victim of exploitation or the petitioner has reasonable cause to
  427  believe the vulnerable adult is, or is in imminent danger of
  428  becoming, a victim of exploitation because the respondent has:
  429  ...(describe in the spaces below the incidents or threats of
  430  exploitation)....
  431         18.10. The following describes the petitioner’s knowledge
  432  of the vulnerable adult’s dependence on the respondent for care;
  433  alternative provisions for the vulnerable adult’s care in the
  434  absence of the respondent, if necessary; available resources the
  435  vulnerable adult has to access such alternative provisions; and
  436  the vulnerable adult’s willingness to use such alternative
  437  provisions: ....
  438         19.11. The petitioner knows the vulnerable adult maintains
  439  assets, accounts, or lines of credit at the following financial
  440  institution(s): ...(list name, address, and account number of
  441  each)....
  442         20.12. The petitioner believes that the vulnerable adult’s
  443  assets to be frozen are: ...(mark one)....
  444         ....Worth less than $1500;
  445         ....Worth between $1500 and $5000; or
  446         ....Worth more than $5000.
  447         21.13. The petitioner genuinely fears imminent exploitation
  448  of the vulnerable adult by the respondent.
  449         22.14. The petitioner seeks an injunction for the
  450  protection of the vulnerable adult, including: ...(mark
  451  appropriate section or sections)....
  452         ....Prohibiting the respondent from having any direct or
  453  indirect contact with the vulnerable adult.
  454         ....Immediately restraining the respondent from committing
  455  any acts of exploitation against the vulnerable adult.
  456         ....Freezing the assets of the vulnerable adult held at
  457  ...(name and address of depository or financial institution)...
  458  even if titled jointly with the respondent, or in the
  459  respondent’s name only, in the court’s discretion.
  460         ....Freezing the credit lines of the vulnerable adult at
  461  ...(name and address of financial institution)... even if
  462  jointly with the respondent, in the court’s discretion.
  463         ....Providing any terms the court deems necessary for the
  464  protection of the vulnerable adult or his or her assets,
  465  including any injunctions or directives to law enforcement
  466  agencies.
  467         23.15. Should the court enter an injunction freezing assets
  468  and credit lines, the petitioner believes that the critical
  469  expenses of the vulnerable adult will be paid for or provided by
  470  the following persons or entities, or the petitioner requests
  471  that the following expenses be paid notwithstanding the freeze:
  472  ...(for each expense, list the name of the payee, address,
  473  account number if known, amount, and a brief explanation of why
  474  payment is critical)....
  475         (5) TEMPORARY INJUNCTION; SERVICE; HEARING.—
  476         (d) An ex parte temporary injunction may be effective for a
  477  fixed period not to exceed 15 days unless good cause is shown to
  478  extend the injunction. The ex parte temporary injunction may be
  479  extended one time for up to an additional 30 days. A full
  480  hearing, as provided by this section, must be set for a date no
  481  later than the date when the ex parte temporary injunction
  482  ceases to be effective. The court may grant a continuance of the
  483  hearing, before or during the hearing, for good cause shown by
  484  any party, which good cause may include a continuance to obtain
  485  service of process. An ex parte injunction is not extended
  486  beyond the initial 15 days as a result of a continuance.
  487         Section 9. This act shall take effect July 1, 2021.