Many older people in Florida must deal with the problems of aging caused by organic brain damage or other physical, mental or emotional illnesses. Often, a person's ability to adequately provide for his or her own care or protection is impaired by these infirmities.
Unfortunately, sometimes deception or intimidation is used by others to obtain or attempt to obtain assets from these ill people. Sometimes a caregiver will intentionally refuse to provide a sick older person with the care, supervision and services necessary to maintain the person's physical and mental health, including food, clothing, medicine, shelter and medical care.
Fortunately, the Florida Legislature has recognized the need to detect and correct such abuse, neglect and exploitation of elderly, disabled adults. The Legislature has addressed this need by establishing the Adult Protective Services Act.
These laws require the Department of Children and Family Services to investigate all reports that allege abuse, neglect or exploitation of an older person or a disabled adult. The purpose of the department's investigation is to determine if there is evidence that a person has been abused, neglected or exploited and if assistance is necessary to protect the individual's health and safety.
This statute requires the Department of Children and Family Services to establish and maintain a central abuse registry and tracking system for all such reports made in writing or through a statewide toll-free telephone number.
Any person may use the statewide toll-free telephone number to report known or suspected abuse, neglect or exploitation of an elderly person or a disabled adult at any hour of the day or night, any day of the week. The toll-free telephone number is (800) 96ABUSE or (800) 962-2873. All records concerning reports of abuse, neglect or exploitation made to this registry and tracking system are confidential.
The Adult Protective Services Act states it is mandatory that any person _ including but not limited to physicians, hospital personnel, mental health officers and bank employees _ who knows or has reasonable cause to suspect an elderly person or disabled person is being abused, neglected or exploited must immediately report such knowledge or suspicion to the central abuse registry and tracking system on the statewide toll-free number.
The statute further provides that any person who makes such a report or participates in a judicial proceeding resulting from it is presumed to be acting in good faith and, unless a lack of good faith is shown, is immune from any civil or criminal liability.
A person who knowingly fails to report a case of known or suspected abuse, neglect or exploitation of an elderly person or disabled adult, or who prevents another person from doing so, commits a second-degree misdemeanor punishable by up to 60 days in jail and a fine of up to $500. Likewise, a person who willfully makes a false report of abuse, neglect or exploitation or who advises another to make a false report commits a second-degree misdemeanor.
Upon receiving an oral or written report of known or suspected abuse, the central abuse registry and tracking system must determine if the report requires an immediate protective service investigation. If the report requires an immediate investigation, the department's designated adult protective investigator will be notified to ensure the prompt beginning of an investigation. For reports not requiring an immediate protective service investigation, the department's district staff will be notified in enough time for an investigation to be commenced within 24 hours.
A protective service investigator will visit the alleged victim within 24 hours of receiving a report. If a report of abuse or neglect is made on the weekend or a holiday, the investigator will make an initial visit to the alleged victim within 24 hours. However, if the report made on the weekend or a holiday relates to an allegation of exploitation, the investigator will not make the initial visit until the next working day.
During the first visit, the protective service investigator will interview the alleged victim and all persons who have knowledge of the situation. The protective service investigator will then determine whether the elderly person or a disabled adult is being abused, neglected or exploited. The investigator will also determine if any harm threatens the elderly person or disabled adult; the nature and extent of the injuries, abuse or neglect; and the person responsible.
Especially important, the protective service investigator will determine the protection, treatment and other services needed to ensure the elderly or disabled person's well-being and will see that those services are provided. The department may, with the consent of the elderly person or the disabled adult, refer the person to a licensed physician or an emergency department in a hospital for medical examination and diagnosis or treatment if the person complains or otherwise exhibits signs of needing medical attention as a result of the suspected abuse or neglect.
If the protective service investigator has reasonable cause to believe the elderly or disabled person is suffering from abuse or neglect presenting a risk of death or serious physical injury and that elderly or disabled person lacks the capacity to consent to emergency protective services, the Department of Children and Family Services may take this person to a medical or protective service facility for treatment.
The department must file a petition with the Circuit Court and demonstrate by clear and convincing evidence that the emergency protective services should continue. If an order to continue emergency services is issued by the circuit judge, it must state the services to be provided and designate an individual or agency to be responsible for performing essential services on behalf of the elderly person or disabled adult.
No later than 30 days after receiving the initial report, the Department of Children and Family Services shall complete its investigation and classify the report as confirmed or unfounded or close the report without classification. A person who is named as a perpetrator in a confirmed report of abuse, neglect or exploitation of a disabled adult or elderly person is subject to a civil penalty of $250 for the first offense, $500 for the second offense, and $1,000 for the third and subsequent offenses.
A disabled adult or an elderly person who has been named as a victim in a confirmed report of abuse, neglect or exploitation has a cause of action against any perpetrator named in the confirmed report and may recover actual and punitive damages.
In any case of reported abuse, neglect or exploitation of an elderly person or disabled adult, the department, when appropriate, shall transmit all reports which pertain to the investigation to the state attorney of the circuit where the incident occurred.
The state attorney is authorized by Florida statute to criminally prosecute a person determined to have knowingly abused, neglected or exploited an elderly or disabled person. A person convicted of abusing, neglecting or exploiting an elderly or disabled adult person will be guilty of a third-degree felony, which is punishable by up to five years in prison and a fine of up to $5,000.
A person convicted of aggravated abuse or neglect of an elderly or disabled adult person will be guilty of a second-degree felony, which is punishable by up to 15 years in prison and a fine of up to $10,000. If the funds, assets or property involved in the exploitation of the elderly or disabled adult person are valued at $100,000 or more, the convicted offender commits a first-degree felony, which is punishable by up to 30 years in prison and a fine of up to $10,000.
Gregory G. Gay is an attorney who specializes in elder law in Pasco and Hernando counties. You can write him c/o Seniority, the Times, P.O. Box 1121, St. Petersburg, FL 33731.