The Florida Senate

415.102  Definitions of terms used in ss. 415.101-415.113.--As used in ss. 415.101-415.113, the term:

(1)  "Abuse" means the nonaccidental infliction of physical or psychological injury or sexual abuse upon a disabled adult or an elderly person by a relative, caregiver, or household member, or an action by any of those persons which could reasonably be expected to result in physical or psychological injury, or sexual abuse of a disabled adult or an elderly person by any person. "Abuse" also means the active encouragement of any person by a relative, caregiver, or household member to commit an act that inflicts or could reasonably be expected to result in physical or psychological injury to a disabled adult or an elderly person.

(2)  "Alleged perpetrator" means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a disabled adult or an elderly person. "Alleged perpetrator" also means a person who has been named by an adult protective investigator, in a report that has been classified as proposed confirmed, as the person responsible for abusing, neglecting, or exploiting a disabled adult or an elderly person.

(3)  "Capacity to consent" means that a disabled adult or elderly person has sufficient understanding to make and communicate responsible decisions regarding the disabled adult's or elderly person's person or property, including whether or not to accept protective services offered by the department.

(4)  "Caregiver" means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a disabled adult or an elderly person on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in ¹subsection (13). For the purpose of departmental investigative jurisdiction, the term "caregiver" does not include law enforcement officers or employees of municipal or county detention facilities or the Department of Corrections while acting in an official capacity.

(5)  "Closed without classification" means the closure of a report in which an adult protective investigator determines that:

(a)  Some evidence exists that abuse, neglect, or exploitation has occurred, but a preponderance of evidence cannot be established; or

(b)  A preponderance of the evidence exists that abuse, neglect, or exploitation has occurred, but no perpetrator can be identified.

(6)  "Confirmed report" means a proposed confirmed report that has been determined to be valid after a hearing under s. 415.1075(2), a proposed confirmed report for which the alleged perpetrator has failed to request amendment or expunction within the time allotted for such a request under s. 415.1075(1), or a proposed confirmed report for which the alleged perpetrator has failed to request an administrative hearing within the time allotted by s. 415.1075(2).

(7)  "Criminal justice agency" means any court, any law enforcement agency, or any government agency or subunit thereof as defined under s. 943.045(10).

(8)  "Deception" means a misrepresentation or concealment of a material fact relating to services rendered, disposition of property, or the use of property intended to benefit a disabled adult or an elderly person.

(9)  "Department" means the Department of Children and Family Services.

(10)  "Disabled adult" means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that substantially restrict the ability to perform the normal activities of daily living.

(11)  "Disabled adult in need of services" means a disabled adult who has been determined by an adult protective services investigator to be suffering from the ill effects of neglect not caused by a second party perpetrator and is in need of protective services or other services to prevent further harm.

(12)  "Elderly person" means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.

(13)  "Elderly person in need of services" means an elderly person who has been determined by an adult protective services investigator to be suffering from the ill effects of neglect not caused by a second party perpetrator and is in need of protective services or other services to prevent further harm.

(14)(a)  "Exploitation" means a person who:

1.  Stands in a position of trust and confidence with a disabled adult or an elderly person and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a disabled adult's or an elderly person's funds, assets, or property with the intent to temporarily or permanently deprive a disabled adult or an elderly person of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the disabled adult or elderly person; or

2.  Knows or should know that the disabled adult or elderly person lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the disabled adult's or elderly person's funds, assets, or property with the intent to temporarily or permanently deprive the disabled adult or elderly person of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the disabled adult or elderly person.

(b)  "Exploitation" may include, but is not limited to:

1.  Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;

2.  Unauthorized taking of personal assets;

3.  Misappropriation, misuse, or transfer of moneys belonging to a disabled adult or elderly person from a personal or joint account; or

4.  Intentional or negligent failure to effectively use a disabled adult's or elderly person's income and assets for the necessities required for that person's support and maintenance.

(15)  "Facility" means any location providing day or residential care or treatment for disabled adults or elderly persons. The term "facility" may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, or mental health treatment center.

(16)  "False report" means a report of abuse, neglect, or exploitation of a disabled adult or an elderly person to the central abuse registry and tracking system which is unfounded and is maliciously made for the purpose of:

(a)  Harassing, embarrassing, or harming another person;

(b)  Personal financial gain for the reporting person;

(c)  Acquiring custody of a disabled adult or an elderly person; or

(d)  Personal benefit for the reporting person in any other private dispute involving a disabled adult or an elderly person.

The term "false report" does not include a report of abuse, neglect, or exploitation of a disabled adult or an elderly person which is made in good faith to the central abuse registry and tracking system and which is classified as unfounded at the conclusion of the investigation.

(17)  "Fiduciary relationship" means a relationship based upon the trust and confidence of the disabled adult or elderly person in the caregiver, relative, household member, or other person entrusted with the use or management of the property or assets of the disabled adult or elderly person. The relationship exists where there is a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the disabled adult or elderly person. For the purposes of this part, a fiduciary relationship may be formed by an informal agreement between the disabled adult or elderly person and the other person and does not require a formal declaration or court order for its existence. A fiduciary relationship includes, but is not limited to, court-appointed or voluntary guardians, trustees, or conservators of a disabled adult's or an elderly person's assets or property.

(18)  "Guardian" means a person who has been appointed by a court to act on behalf of a person; a preneed guardian, as provided in chapter 744; or a health care surrogate expressly designated by a principal to make health care decisions on behalf of the principal upon the principal's incapacity, as provided in chapter 765.

(19)  "In-home services" means the provision of nursing, personal care, supervision, or other services to disabled adults or elderly persons in their own homes.

(20)  "Intimidation" means the communication by word or act to a disabled adult or an elderly person that that person will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence.

(21)  "Lacks capacity to consent" means a mental impairment that causes a disabled adult or an elderly person to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the disabled adult's or elderly person's person or property, including whether or not to accept protective services offered by the department.

(22)  "Neglect" means the failure or omission on the part of the caregiver or disabled adult or elderly person to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a disabled adult or an elderly person. The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a disabled adult or an elderly person from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

(23)  "No jurisdiction" means the disposition of a report that the department does not investigate because the report does not meet the criteria specified in ss. 415.101-415.113.

(24)  "Obtains or uses" means any manner of:

(a)  Taking or exercising control over property; or

(b)  Making any use, disposition, or transfer of property.

(25)  "Perpetrator" means the person who has been named as causing abuse, neglect, or exploitation of a disabled adult or an elderly person in a report that has been classified as confirmed.

(26)  "Position of trust and confidence" with respect to a disabled adult or an elderly person means the position of a person who:

(a)  Is a parent, spouse, adult child, or other relative by blood or marriage of the disabled adult or elderly person;

(b)  Is a joint tenant or tenant in common with the disabled adult or elderly person;

(c)  Has a legal or fiduciary relationship with the disabled adult or elderly person, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator; or

(d)  Is a caregiver of the disabled adult or elderly person or any other person who has been entrusted with or has assumed responsibility for the use or management of the elderly person's or disabled adult's funds, assets, or property.

(27)  "Property" means anything of value, and includes:

(a)  Real property, including things growing on, affixed to, and found in land.

(b)  Tangible personal property, including, but not limited to, furniture, jewelry, or clothing and intangible personal property, including rights, privileges, interests, and claims.

(28)  "Proposed confirmed report" means a report of abuse, neglect, or exploitation which is made pursuant to s. 415.1034 when an adult protective investigation alleges that there is a preponderance of evidence that abuse, neglect, or exploitation occurred and which identifies the alleged perpetrator.

(29)  "Protective investigator" means an employee of the department responsible for:

(a)  The onsite investigation, classification, and disposition of all reports alleging abuse, neglect, or exploitation of a disabled adult or an elderly person;

(b)  The determination of immediate risk to a disabled adult or an elderly person, which determination must include the provision of emergency services and the arrangement for immediate in-home and nonemergency services to prevent the recurrence of further abuse, neglect, or exploitation; and

(c)  The evaluation of the need for and referrals to ongoing protective services for a disabled adult or an elderly person.

(30)  "Protective services" means the provision or arrangement of services to protect a disabled adult or an elderly person from further occurrences of abuse, neglect, or exploitation. Such services may include, but are not limited to, protective supervision, placement, and in-home and community-based services.

(31)  "Protective supervision" means those services arranged for or implemented by the department to protect disabled adults or elderly persons from further occurrences of abuse, neglect, or exploitation during an investigation or following a report that has been classified as proposed confirmed or confirmed, or has been closed without classification.

(32)  "Psychological injury" means an injury to the intellectual functioning or emotional state of a disabled adult or an elderly person as evidenced by an observable or measurable reduction in the disabled adult's or elderly person's ability to function within that person's customary range of performance and that person's behavior.

(33)  "Records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, videotapes, or other material, regardless of physical form or characteristics, made or received pursuant to an adult protective investigation.

(34)  "Sexual abuse" means acts of a sexual nature committed for the sexual gratification of the abuser and in the presence of a disabled adult or an elderly person without that person's informed consent. "Sexual abuse" includes, but is not limited to, the acts defined in s. 794.011(1)(h), fondling, exposure of a disabled adult's or elderly person's sexual organs, or the use of a disabled adult or an elderly person to solicit for or engage in prostitution or sexual performance. "Sexual abuse" does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate display of affection.

(35)  "Specified medical personnel" means licensed or certified physicians, osteopathic physicians, nurses, paramedics, advanced registered nurse practitioners, psychologists, psychiatrists, mental health professionals, or any other licensed or certified medical personnel.

(36)  "Unfounded report" means a report made pursuant to s. 415.1034 in which the department determines that no evidence of abuse, neglect, or exploitation exists.

(37)  "Victim" means any disabled adult or elderly person named in a report of abuse, neglect, or exploitation.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 28, ch. 86-220; s. 29, ch. 87-238; s. 26, ch. 89-294; s. 1, ch. 90-50; s. 44, ch. 90-306; s. 1, ch. 91-57; s. 35, ch. 95-210; s. 94, ch. 95-418; s. 9, ch. 97-98; s. 127, ch. 97-101; s. 41, ch. 97-264; s. 1, ch. 98-182.

¹Note.--Redesignated subsection (15) by s. 1, ch. 98-182.