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Florida guardians, trustees and powers of attorney be advised!

This ia another in a series of blog entries discussing Florida's recent changes to Chapter 825 which addresses exploitation of an elderly person or disabled adult.

Guardians, trustees and those acting under a power of attorney in Florida need to take note of the changes to Florida's Elder Exploitation statute. What is considered exploitaiton does not have to amount to some insidious attempt to steal from an elderly person or disabled adult. Exploitation can occur based on some fairly broad parameters such as taking action "contrary to the person's best interests."

Exploitation of an elderly person or disabled adult includes within its scope:

Breach of a fiduciary duty to an elderly person or disabled adult by the person's guardian, trustee who is an individual, or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property. An unauthorized appropriation under this paragraph occurs when the elderly person or disabled adult does not receive the reasonably equivalent financial value in goods or services, or when the fiduciary violates certain enumerated duties, as follows:

For agents appointed under chapter 709 (governing powers of attorney):

a. Committing fraud in obtaining their appointments;

b. Abusing their powers;

c. Wasting, embezzling, or intentionally mismanaging the assets of the principal or beneficiary; or

d. Acting contrary to the principal's sole benefit or best interest.

For guardians and trustees who are individuals and who are appointed under chapter 736 or chapter 744:

a. Committing fraud in obtaining their appointments;

b. Abusing their powers; or

c. Wasting, embezzling, or intentionally mismanaging the assets of the ward or beneficiary of the trust.

Understanding the implications of these provisions of Chapter 825 will be important for persons acting as a power of attorney, guardian or trustee. Some of the language is sufficiently broad that it may be unclear to a fiduciary whether an action would violate the statute. For example, when a power of attorney is taking action, how can they always be sure that their action is not "contrary to the principal's sole benefit or best interest?" Because of the potential for uncertainty, fiduciaries are well-advised to seek legal advice when facing tough decisions regarding the handling of assets of an elderly person or a disabled adult.

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Attorney Michael Lins
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