HB 1287

1
A bill to be entitled
2An act relating to financial exploitation of elderly
3persons; creating ss. 410.701-410.706, F.S.; providing a
4popular name; providing legislative intent; providing
5definitions; making financial exploitation of an elderly
6person unlawful; providing for a civil action for actual
7and punitive damages; providing for an award of attorney's
8fees; providing continued jurisdiction of the court in the
9event of the death of the elderly person; authorizing the
10Attorney General to investigate, administer oaths,
11subpoena witnesses, or bring a civil action under certain
12circumstances; providing for the award of costs of such
13action to the Attorney General; providing for the elderly
14person to request an advance on the trial docket; limiting
15available damages; limiting available defenses; providing
16limitation on the possibility of a waiver; limiting
17punitive damages; requiring deposit of a portion of any
18punitive damage award into a certain trust fund; requiring
19the Department of Revenue to collect and deposit payments;
20providing for proportionate shares of punitive damages
21under certain circumstances; requiring the Department of
22Elderly Affairs to develop educational initiatives to
23educate certain persons; creating s. 825.1035, F.S.;
24providing a definition; providing criminal penalties for
25committing financial exploitation of an elderly person;
26requiring the Governor to appoint a financial security
27task force and providing duties thereof; providing an
28effective date.
29
30Be It Enacted by the Legislature of the State of Florida:
31
32     Section 1.  Section 410.701, Florida Statutes, is created
33to read:
34     410.701  Popular name.--Sections 410.701-410.706 may be
35referred to by the popular name the "Financial Protection for
36the Elderly Act of 2004."
37     Section 2.  Section 410.702, Florida Statutes, is created
38to read:
39     410.702  Legislative intent.--The Legislature recognizes
40that elderly persons are frequent victims of deceptive and
41unfair acts and business practices and are often unusually
42vulnerable to such conduct. The purpose of ss. 410.701-410.706
43is to protect elderly persons from being exploited financially
44by giving elderly persons means to recover damages from those
45engaging in deceptive and unfair activities against them.
46     Section 3.  Section 410.703, Florida Statutes, is created
47to read:
48     410.703  Definitions.?As used in ss. 410.701?410.706, the
49term:
50     (1)  "Deception" means a false or misleading
51representation, omission, or concealment of a material fact
52relating to services rendered to, disposition of property of, or
53the use of property belonging to or intended for the benefit of
54an elderly person.
55     (2)  "Department" means the Department of Elderly Affairs.
56     (3)  "Elderly person" means a person over the age of 60 who
57resides in this state.
58     (4)  "Fiduciary relationship" means a relationship in which
59an elderly person has entrusted a person with the use or
60management of the funds, property, or other assets of the
61elderly person. The relationship exists where there is a special
62confidence reposed in one who in equity and good conscience is
63bound to act in good faith and with due regard to the interests
64of the elderly person. For the purposes of ss. 410.701-410.706,
65a fiduciary relationship may be formed by an informal agreement
66between the elderly person and the other person and does not
67require a formal declaration or court order for its existence.
68     (5)  "Financial exploitation" means to obtain or use, or
69endeavor to obtain or use, by deception or intimidation, an
70elderly person's funds, assets, or property with the intent to
71permanently separate an elderly person from such funds, assets,
72or property. Financial exploitation includes any act in
73furtherance of the causing, bringing about, participation in,
74aiding, or abetting of the financial exploitation of an elderly
75person.
76     (6)  "Financial institution" includes a bank, bank holding
77company, credit card bank, banking organization, savings
78association, trust company, credit union, investment company,
79insurance company, or money market mutual fund.
80     (7)  "Intimidation" means the communication by word or act
81to an elderly person that he or she will be deprived of food,
82nutrition, clothing, shelter, medicine, medical services, money,
83or financial support or will suffer physical violence, which
84communication a person could reasonably infer was intended to
85frighten, coerce, or forcibly compel the elderly person.
86     (8)  "Obtains or uses" means any manner of:
87     (a)  Taking or exercising control over funds, property, or
88assets; or
89     (b)  Making any use, disposition, or transfer of funds,
90property, or assets.
91     Section 4.  Section 410.704, Florida Statutes, is created
92to read:
93     410.704  Financial exploitation; civil action.--
94     (1)  Financial exploitation of an elderly person by a
95financial institution or its subsidiary which has a fiduciary or
96legal relationship with the elderly person is unlawful and
97against the public policy of this state.
98     (2)  Any elderly person who suffers injury or loss as a
99result of a violation of this section may bring an action in any
100court of competent jurisdiction for actual damages and, if
101appropriate, punitive damages. A plaintiff who prevails in any
102such action may be entitled to recover reasonable attorney's
103fees and costs of the action. Nothing in this section shall
104prevent the application of s. 57.105 in assessing attorney's
105fees against a plaintiff.
106     (3)  No attorney's fees may be paid by a claimant for
107services related to this section or awarded to the plaintiff
108under this section in excess of a maximum fee calculated in
109accordance with the lodestar process approved by the Florida
110Supreme Court. Such maximum fee shall be set by the
111determination of the number of hours reasonably expended on the
112matter and the reasonable hourly rate for the services provided
113by the attorney. In contingent fee matters, the lodestar figure
114calculated may include a reasonable contingency risk multiplier
115not greater than 4. Attorney's fees may also include
116reimbursement for reasonable costs and expenses.
117     (4)  A court shall not lose jurisdiction of any claim for
118relief under this section due to the death of the elderly
119person. An action may be brought by the elderly person, or that
120person's guardian, by a person or organization acting on behalf
121of the elderly person with the consent of that person or that
122person's guardian, or by the personal representative, executor,
123or trustee of the estate of a deceased elderly person.
124     (5)  Notwithstanding any other provision of law, the
125Attorney General may:
126     (a)  Conduct an investigation, administer oaths, and
127subpoena witnesses or matter if the Attorney General has reason
128to believe that a person has engaged in, or is engaging in, an
129act or practice involving financial exploitation of an elderly
130person.
131     (b)  Bring a civil action in circuit court for actual
132damages, restitution, or injunctive, declaratory, or other
133appropriate equitable relief on behalf of an elderly person who
134has suffered a loss as a result of a violation of this section.
135     (6)  In the case of any successful action brought by the
136Attorney General under this section, the costs of the action,
137together with a reasonable attorney's fee, shall be awarded to
138the Attorney General. Any moneys received by the Attorney
139General for attorney's fees and costs of investigation or
140litigation in enforcement of this section shall be deposited in
141the Elder Victims Trust Fund, if created by law.
142     (7)  In an action under this section in which an elderly
143person is a party, the elderly person may move the court to
144advance the trial on the docket. The presiding judge, after
145consideration of the age and health of the party, may advance
146the trial on the docket. The motion may be filed and served with
147the initial complaint or at any time thereafter.
148     (8)  The rights and remedies provided in ss. 410.701?
149410.706 are in addition to and cumulative with other legal and
150administrative remedies available to an elderly person, except a
151party may not recover damages under this section in addition to
152damages under s. 772.11.
153     (9)  Lack of knowledge of the elderly person's age does not
154constitute a defense to a cause of action brought under ss.
155410.701?410.706.
156     (10)  Any waiver by an elderly person of the provisions of
157ss. 410.701?410.706 or any relief or remedies provided to any
158elderly person in ss. 410.701?410.706 shall be unenforceable and
159void.
160     Section 5.  Section 410.705, Florida Statutes, is created
161to read:
162     410.705  Punitive damages; limitation; allocation.--
163     (1)  An award of punitive damages may not exceed the
164greater of:
165     (a)  Three times the amount of compensatory damages awarded
166to each claimant entitled thereto, consistent with the remaining
167provisions of this section; or
168     (b)  The sum of $1 million.
169     (2)  This section is not intended to prohibit an
170appropriate court from exercising its jurisdiction under s.
171768.74 in determining the reasonableness of an award of punitive
172damages that is less than three times the amount of compensatory
173damages.
174     (3)  A jury may not be instructed or informed as to the
175provisions of this section.
176     (4)  Notwithstanding any other law to the contrary, the
177amount of punitive damages awarded pursuant to this section
178shall be equally divided between the claimant and the Elder
179Victims Trust Fund, if created by law, in accordance with the
180following provisions:
181     (a)  The clerk of court shall transmit a copy of the jury
182verdict to the Chief Financial Officer by certified mail. In the
183final judgment, the court shall order the percentages of the
184award, payable as provided herein.
185     (b)  A settlement agreement entered into between the
186original parties to the action after a verdict has been returned
187must provide a proportionate share payable to the Elder Victims
188Trust Fund, if created by law. For purposes of this paragraph, a
189proportionate share is a 50-percent share of that percentage of
190the settlement amount which the punitive damages portion of the
191verdict bore to the total of the compensatory and punitive
192damages in the verdict.
193     (c)  The Department of Revenue shall collect or cause to be
194collected all payments due the state under this section. Such
195payments shall be deposited in the Elder Victims Trust Fund, if
196created by law.
197     (d)  If the full amount of punitive damages awarded cannot
198be collected, the claimant and the other recipients designated
199pursuant to this subsection are each entitled to a proportionate
200share of the punitive damages collected.
201     Section 6.  Section 410.706, Florida Statutes, is created
202to read:
203     410.706  Exploitation of elderly persons; educational
204initiatives.--The department shall develop and implement
205statewide educational initiatives to inform elderly persons, law
206enforcement officers, members of the judicial system, social
207services professionals, and the general public of the prevalence
208of and methods for preventing deceptive and unfair acts or
209practices that victimize elderly persons, and to inform these
210groups of the provisions of this chapter, chapter 415, and ss.
211772.11, 775.0844, and 812.0145 and the rights and remedies
212available to elderly persons.
213     Section 7.  Section 825.1035, Florida Statutes, is created
214to read:
215     825.1035  Financial exploitation of elderly persons.--
216     (1)  "Financial exploitation of an elderly person" means
217knowingly, by deception or intimidation, obtaining or using, or
218endeavoring to obtain or use, the funds, assets, or property of
219an elderly person with the intent to temporarily or permanently
220deprive the elderly person of the use, benefit, or possession of
221the funds, assets, or property, or for the benefit of someone
222other than the elderly person, by a person who has a business
223relationship with the elderly person.
224     (2)(a)  If the funds, assets, or property involved in the
225exploitation of the elderly person are valued at $100,000 or
226more, the offender commits a felony of the second degree,
227punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
228     (b)  If the funds, assets, or property involved in the
229exploitation of the elderly person are valued at $20,000 or
230more, but less than $100,000, the offender commits a felony of
231the third degree, punishable as provided in s. 775.082, s.
232775.083, or s. 775.084.
233     (c)  If the funds, assets, or property involved in the
234exploitation of the elderly person are valued at less than
235$20,000, the offender commits a misdemeanor of the first degree,
236punishable as provided in s. 775.082 or by a fine of not more
237than $5,000, or both.
238     Section 8.  The Governor shall appoint a financial security
239task force for elderly persons, to be established within the
240Department of Elderly Affairs, to make recommendations to the
241Legislature, on or before January 1, 2005, for the establishment
242of a program to identify and certify commercial organizations
243that take significant affirmative steps to protect elderly
244persons from fraud, deceit, and other harms that often arise out
245of an elderly person's unique position in the marketplace. The
246task force should focus on financial and similar institutions
247and fiduciary enterprises that assume responsibility for the
248holding or management of funds, property, or assets of elderly
249persons, as well as those who provide professional services to
250elderly persons. The task force shall investigate whether it
251would be advisable to identify or establish standards or best
252practices for organizations to adopt and follow that might
253protect elderly persons from fraud and deceit and from incidents
254of misuse of the personal and financial information of elderly
255persons. The objective of the recommendations should be to
256enable commercial organizations to maintain and publicize a
257business policy protective of the interests of elderly persons
258and to empower elderly persons to easily identify those
259commercial organizations that will best assist them in
260protecting their own financial and privacy interests.
261     Section 9.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.