Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1344
       
       
       
       
       
       
                                Ì948234-Î948234                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/23/2021           .                                
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       The Committee on Criminal Justice (Burgess) recommended the
       following:
       
    1         Senate Amendment 
    2  
    3         Delete lines 102 - 313
    4  and insert:
    5         (b)Has been convicted in any state or other jurisdiction
    6  of abuse, neglect, or exploitation of an elderly person or a
    7  disabled adult as those terms are defined in s. 825.101.
    8         (c)(b) Is mentally or physically unable to perform the
    9  duties.
   10         (d)(c) Is under the age of 18 years.
   11         Section 3. Section 732.8031, Florida Statutes, is created
   12  to read:
   13         732.8031Forfeiture for abuse, neglect, exploitation, or
   14  aggravated manslaughter of an elderly person or disabled adult.—
   15         (1)A surviving person who is convicted in any state or
   16  other jurisdiction of abuse, neglect, exploitation, or
   17  aggravated manslaughter of an elderly person or disabled adult,
   18  as those terms are defined in s. 825.101, for conduct against
   19  the decedent or another person on whose death such beneficiary’s
   20  interest depends is not entitled to any benefits under the will
   21  of the decedent or the Florida Probate Code, and the estate of
   22  the decedent passes as if the abuser, neglector, exploiter, or
   23  killer had predeceased the decedent. Property appointed by the
   24  will of the decedent to or for the benefit of the abuser,
   25  neglector, exploiter, or killer passes as if the abuser,
   26  neglector, exploiter, or killer had predeceased the decedent.
   27         (a)A conviction for abuse, neglect, exploitation, or
   28  aggravated manslaughter of the decedent or other person creates
   29  a rebuttable presumption that this section applies.
   30         (b)In the absence of a qualifying conviction, the court
   31  may determine by the greater weight of the evidence whether the
   32  decedent’s or other person’s death was caused by or contributed
   33  to by the conduct of the abuser or neglector as those terms are
   34  described in s. 825.102, exploiter as described in s. 825.103,
   35  or killer as provided in s. 782.07.
   36         (2)A joint tenant who is convicted in any state or other
   37  jurisdiction of abuse, neglect, exploitation, or aggravated
   38  manslaughter of an elderly person or disabled adult, as those
   39  terms are defined in s. 825.101, for conduct against another
   40  joint tenant decedent thereby effects a severance of the
   41  interest of the decedent so that the share of the decedent
   42  passes as the decedent’s sole property and as if the abuser,
   43  neglector, exploiter, or killer has no rights by survivorship.
   44  This subsection applies to joint tenancies with right of
   45  survivorship and tenancies by the entirety in real and personal
   46  property; joint and multiple-party accounts in banks, savings
   47  and loan associations, credit unions, and other financial
   48  institutions; and any other form of coownership with
   49  survivorship interests.
   50         (a)A conviction for abuse, neglect, exploitation, or
   51  aggravated manslaughter of the decedent or other person creates
   52  a rebuttable presumption that this section applies.
   53         (b)In the absence of a qualifying conviction, the court
   54  may determine by the greater weight of the evidence whether the
   55  decedent’s or other person’s death was caused by or contributed
   56  to by the conduct of the abuser or neglector as those terms are
   57  described in s. 825.102, exploiter as described in s. 825.103,
   58  or killer as provided in s. 782.07.
   59         (3)A named beneficiary of a bond, life insurance policy,
   60  or other contractual arrangement who is convicted in any state
   61  or other jurisdiction of abuse, neglect, exploitation, or
   62  aggravated manslaughter of an elderly person or disabled adult,
   63  as those terms are defined in s. 825.101, for conduct against
   64  the owner or principal obligee of the bond, life insurance
   65  policy, or other contractual arrangement or the person upon
   66  whose life such policy was issued is not entitled to any benefit
   67  under the bond, policy, or other contractual arrangement, and
   68  the bond, policy, or other contractual arrangement becomes
   69  payable as though the abuser, neglector, exploiter, or killer
   70  had predeceased the decedent.
   71         (a)A conviction for abuse, neglect, exploitation, or
   72  aggravated manslaughter of the decedent or other person creates
   73  a rebuttable presumption that this section applies.
   74         (b)In the absence of a qualifying conviction, the court
   75  may determine by the greater weight of the evidence whether the
   76  decedent’s or other person’s death was caused by or contributed
   77  to by the conduct of the abuser or neglector as those terms are
   78  described in s. 825.102, exploiter as described in s. 825.103,
   79  or killer as provided in s. 782.07.
   80         (4)Any other acquisition of property or interest by the
   81  abuser, neglector, exploiter, or killer, including a life estate
   82  in homestead property, shall be treated in accordance with the
   83  principles of this section.
   84         (5)(a)This section does not affect the rights of any
   85  person who, before rights under this section have been
   86  adjudicated, purchases from the abuser, neglector, exploiter, or
   87  killer for value and without notice property that the abuser,
   88  neglector, exploiter, or killer would have acquired except for
   89  this section.
   90         (b)The abuser, neglector, exploiter, or killer is liable
   91  for the amount of the proceeds or the value of the property
   92  under paragraph (a).
   93         (6)Any insurance company, bank, or other obligor making
   94  payment according to the terms of its policy or obligation is
   95  not liable by reason of this section unless before payment it
   96  receives at its home office or principal address written notice
   97  of a claim under this section.
   98         (7)This section does not apply if, after the conviction of
   99  abuse, neglect, or exploitation, the victim of the offense, if
  100  capacitated, executes a written instrument, sworn to and
  101  witnessed by two persons who would be competent as witnesses to
  102  a will, which expresses a specific intent to allow the person so
  103  convicted of abuse, neglect, or exploitation to retain his or
  104  her inheritance or survivorship rights.
  105         Section 4. Subsection (3) is added to section 736.1104,
  106  Florida Statutes, to read:
  107         736.1104 Person Killer not entitled to receive property or
  108  other benefits by reason of victim’s death.—
  109         (3)A beneficiary of a trust who was convicted in any state
  110  or other jurisdiction of abuse, neglect, exploitation, or
  111  aggravated manslaughter of an elderly person or disabled adult,
  112  as those terms are defined in s. 825.101, for conduct against a
  113  settlor or another person on whose death such beneficiary’s
  114  interest depends is not entitled to any trust interest,
  115  including a homestead dependent on the victim’s death, and such
  116  interest shall devolve as though the abuser, neglecter,
  117  exploiter, or killer had predeceased the victim.
  118         (a)A conviction for abuse, neglect, exploitation, or
  119  aggravated manslaughter of the decedent or other person creates
  120  a rebuttable presumption that this section applies.
  121         (b)In the absence of a qualifying conviction, the court
  122  may determine by the greater weight of the evidence whether the
  123  decedent’s or other person’s death was caused by or contributed
  124  to by the conduct of the abuser or neglector as those terms are
  125  described in s. 825.102, exploiter as described in s. 825.103,
  126  or killer as provided in s. 782.07.
  127         Section 5. Subsections (8) through (14) of section 825.101,
  128  Florida Statutes, are renumbered as subsections (10) through
  129  (16), respectively, and new subsections (8) and (9) are added to
  130  that section, to read:
  131         825.101 Definitions.—As used in this chapter:
  132         (8)“Improper benefit” means any remuneration or payment,
  133  by or on behalf of any service provider or merchant of goods, to
  134  any person as an incentive or inducement to refer customers or
  135  patrons for past or future services or goods.
  136         (9)“Kickback” has the same meaning as in s. 456.054(1).
  137         Section 6. Paragraphs (b) and (c) of subsection (1) of
  138  section 825.102, Florida Statutes, are amended, and paragraph
  139  (d) is added to that subsection, to read:
  140         825.102 Abuse, aggravated abuse, and neglect of an elderly
  141  person or disabled adult; penalties.—
  142         (1) “Abuse of an elderly person or disabled adult” means:
  143         (b) An intentional act that could reasonably be expected to
  144  result in physical or psychological injury to an elderly person
  145  or disabled adult; or
  146         (c) Active encouragement of any person to commit an act
  147  that results or could reasonably be expected to result in
  148  physical or psychological injury to an elderly person or
  149  disabled adult; or
  150         (d)Intentionally, and without lawful authority, isolating
  151  or restricting access of an elderly person or a disabled adult
  152  to family members for any length of time which could reasonably
  153  be expected to result in physical or psychological injury to the
  154  elderly person or disabled adult, or with the intent to promote,
  155  facilitate, conceal, or disguise some form of criminal activity
  156  involving the person or property of the elderly person or
  157  disabled adult. It is a defense to a violation of this paragraph
  158  that the defendant had reasonable cause to believe that his or
  159  her action was necessary to protect the elderly person or
  160  disabled adult from danger to his or her welfare.
  161  
  162  A person who knowingly or willfully abuses an elderly person or
  163  disabled adult without causing great bodily harm, permanent
  164  disability, or permanent disfigurement to the elderly person or
  165  disabled adult commits a felony of the third degree, punishable
  166  as provided in s. 775.082, s. 775.083, or s. 775.084.
  167         Section 7. Paragraphs (c), (d), and (e) of subsection (1)
  168  of section 825.103, Florida Statutes, are amended, and paragraph
  169  (f) is added to that subsection, to read:
  170         825.103 Exploitation of an elderly person or disabled
  171  adult; penalties.—
  172         (1) “Exploitation of an elderly person or disabled adult”
  173  means:
  174         (c) Breach of a fiduciary duty to an elderly person or
  175  disabled adult by the person’s guardian, trustee who is an
  176  individual, or agent under a power of attorney which results in
  177  an unauthorized appropriation, sale, or transfer of property,
  178  kickback, or receipt of an improper benefit. An unauthorized
  179  appropriation under this paragraph occurs when the elderly
  180  person or disabled adult does not receive the reasonably
  181  equivalent financial value in goods or services, or when the
  182  fiduciary violates any of these duties:
  183         1. For agents appointed under chapter 709:
  184         a. Committing fraud in obtaining their appointments;
  185         b.Obtaining appointments with the purpose and design of
  186  benefiting someone other than the principal or beneficiary;
  187         c.b. Abusing their powers;
  188         d.c. Wasting, embezzling, or intentionally mismanaging the
  189  assets of the principal or beneficiary; or
  190         e.d. Acting contrary to the principal’s sole benefit or
  191  best interest; or
  192         2. For guardians and trustees who are individuals and who
  193  are appointed under chapter 736 or chapter 744:
  194         a. Committing fraud in obtaining their appointments;
  195         b.Obtaining appointments with the purpose and design of
  196  benefiting someone other than the principal or beneficiary;
  197         c.b. Abusing their powers; or
  198         d.c. Wasting, embezzling, or intentionally mismanaging the
  199  assets of the ward or beneficiary of the trust;
  200         (d) Misappropriating, misusing, or transferring without
  201  authorization money belonging to an elderly person or disabled
  202  adult from an account in which the elderly person or disabled
  203  adult placed the funds, owned the funds, and was the sole
  204  contributor or payee of the funds before the misappropriation,
  205  misuse, or unauthorized transfer. This paragraph only applies to
  206  the following types of accounts:
  207         1. Personal accounts;
  208         2. Joint accounts created with the intent that only the
  209  elderly person or disabled adult enjoys all rights, interests,
  210  and claims to moneys deposited into such account; or
  211         3. Convenience accounts created in accordance with s.
  212  655.80; or
  213         (e) Intentionally or negligently failing to effectively use
  214  an elderly person’s or disabled adult’s income and assets for
  215  the necessities required for that person’s support and
  216  maintenance, by a caregiver or a person who stands in a position
  217  of trust and confidence with the elderly person or disabled
  218  adult; or
  219         (f)Knowingly obtaining or using, endeavoring to obtain or
  220  use, or conspiring with another to obtain or use an elderly
  221  person’s or a disabled adult’s funds, assets, property, or
  222  estate through intentional modification, alteration, or
  223  fraudulent creation of a plan