Exploiting the Elderly
Although most people associate white collar crime with offenses like insider trading and embezzlement, the term actually covers a wide range of crimes. For example, in Florida, exploiting an elderly person is considered a white collar crime and as such, is punishable by up to 30 years in prison. Presenting a strong defense in these types of cases is critical, so if you have been charged with exploitation or another financial crime, you should consider speaking with an experienced attorney who may be able to get your charges reduced or even dismissed.
Elements of Exploitation
Before a person can be convicted of exploiting an elderly person or a disabled adult, prosecutors must be able to prove that the defendant knowingly obtained or attempted to use an elderly person’s funds, assets, or property with the intent to deprive him or her of them or:
- Transferred assets without authorization;
- Failed to use the victim’s income and assets for that person’s support and maintenance; or
- Committed fraud, embezzled, or intentionally mismanaged the person’s assets, abused their powers, or acted contrary to the principal’s sole best interest.
However, only individuals who have a specific relationship with the elderly or disabled person fall under the purview of the statute. For example, to be charged, a defendant must have:
- Held a position of trust with the elderly person or disabled adult;
- Had a business relationship with the victim;
- Knew or should have known that the victim lacked the capacity to consent to transfer of the funds or property in question; or
- Been the victim’s guardian, trustee, or agent under a power of attorney and breached their fiduciary duty to the victim.
Presumption of Fraud
In Florida, certain actions are automatically presumed to be fraudulent and exploitative in nature. For example, any transfer of money or property that satisfies the following requirements is presumed to be exploitive:
- The assets or property being transferred are worth more than $10,000;
- The transfer is being made by a person over the age of 65 years old;
- The transfer is made to a non-relative, whom the transferor knew for less than two years; and
- The transferor did not receive a reasonably equivalent value in goods or services in exchange for the assets.
These types of transactions are considered fraudulent even if the parties refer to the transfer as a loan, although there is an exception for legitimate loans that are in writing and have a definite repayment schedule. However, even in these cases, if repayment is in default for more than 65 days, the presumption will apply. This presumption also does not apply to:
- Those who are in the business of making loans; or
- Legitimate charitable donations made to a nonprofit organization that qualifies for tax exempt status.
The penalties faced by someone who is accused of this offense depend on the value of the assets in question. If, for example, the property was worth more than $50,000, the defendant can be charged with a first degree felony, which could mean a prison sentence of up to 30 years. However, if the funds were less than $50,000, but more than $10,000 the offense will be downgraded to a second degree felony, while assets valued at less than $10,000 will support a third degree felony conviction.
Get the Legal Representation You Deserve
If you have been unfairly accused of exploiting an elderly or disabled adult, please call 305-670-9919 to schedule a free consultation with dedicated Miami white collar crime attorney Jeffrey S. Weiner, P.A.