What is Adult Exploitation?
Exploitation is typically the process of misusing the resources of an individual for personal benefit. Exploitation can be both physical and mental. Physical exploitation includes violence, sexual assault, and more. Psychological exploitation is done typically by someone who the exploited individual trusts. Psychological exploitation most often takes the form of financial exploitation, when the person close to the victim exploits their position of trust by unfairly gaining financial benefit at the expense of the victim’s finances. This can be done by psychological manipulation and/or physical abuse.
In other words, exploitation requires that the exploiting adult know that the vulnerable adult lacks the capacity to consent to the actions that he is being forced to engage in by the exploiting adult. Section 415.102 of the Florida Statutes (2019).
Exploitation also includes breach of fiduciary relationships and the abuse of guardianship duties.
What Does Undue Influence Mean in Florida?
In certain cases, exploitation can manifest itself in a person occupying a position of trust engaging in undue influence over his victim and forcing the victim to make decisions that he otherwise would not have made. Undue influence is a claim that can be brought when there is some reason to suspect that a person’s Last Will and Testament was not made in accordance with true interests and wishes of the author of the will.
Under Florida law, a presumption of undue influence arises when “a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will”. If the plaintiff is able to raise this presumption, the burden will shift to the defendant to rebut the presumption by proving that there was no undue influence.
In a famous 1971 case, In re Estate of Carpenter, the Florida Supreme Court established several factors that are used to assess whether undue influence has taken place:
- The beneficiary’s presence at the execution of the will;
- The beneficiary’s presence on those occasions when the testator expressed the desire to make a will;
- Recommendations by the beneficiary on an attorney to draw up the will;
- Knowledge of the contents of the will by the beneficiary prior to its execution;
- The beneficiary giving instructions on preparation of the will to the attorney drawing the will;
- The beneficiary involvement in securing the witnesses to the will; and
- Whether the beneficiary safekeeping of the will by the beneficiary subsequent to execution.
If is important, therefore, to collect possible evidence to be able to show whether all or the majority of these factors are present to support a presumption of undue influence.
What Are the Adult Protective Services in Florida?
The Adult Protective Services in Florida are part of the Florida Department of Children and Families. You can report adult exploitation online at https://reportabuse.dcf.state.fl.us/ or by calling their hotline at 1-800-962-2873.