HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1041 Protection of Elderly Persons and Disabled Adults
SPONSOR(S): Judiciary Committee, Burton
TIED BILLS: IDEN./SIM. BILLS: SB 1344
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 16 Y, 0 N Brascomb Jones
2) Judiciary Committee 15 Y, 0 N, As CS Brascomb Kramer
SUMMARY ANALYSIS
Florida has the highest percentage of senior residents in the nation, projected to increase to 25 percent of the
state population – 5.9 million seniors – by 2030. Elder populations are vulnerable to abuse and exploitation
due to risk factors associated with aging, such as physical and mental infirmities and social isolation. In Florida,
almost 1.3 million senior citizens live in medically underserved areas and 1.4 million suffer from one or more
disabilities. At the national level, according to the Department of Justice, approximately 1 in 10 seniors is
abused each year, and incidents of elder abuse are reported to local authorities in 1 out of every 23 cases.
Elder abuse can have significant physical and emotional effects on an older adult and can lead to premature
death. Prevalent forms of abuse are financial exploitation, neglect, emotional or psychological abuse, and
physical abuse; however, an elder abuse victim will often experience multiple forms of abuse at the same time.
CS/HB 1041 makes several changes and additions to laws protecting elderly and disabled persons.
Specifically, the bill:
Prohibits a person who commits the following offenses on an elderly person or disabled adult from
inheriting from the victim’s estate, trust, or other beneficiary assets:
o Abuse;
o Neglect;
o Exploitation; or
o Aggravated manslaughter.
Authorizes the Office of Statewide Prosecution to investigate and prosecute crimes under chapter 825,
F.S.
Prohibits unreasonable isolation of an elderly person or disabled adult from his or her family members.
Prohibits seeking out appointment as a guardian, trustee, or agent under power of attorney with the
intent to obtain control over the victim or his or her assets for the perpetrator or some third party’s
benefit.
Prohibits intentional conduct by a perpetrator to modify an elderly or disabled victim’s estate plan to
financially benefit either the perpetrator or third party in a manner that is inconsistent with the intent of
the elderly person or disabled adult.
Authorizes agents under a durable power of attorney to petition for an injunction for protection against
exploitation of a vulnerable adult.
The bill may have a fiscal impact on state government and does not appear to have a fiscal impact on local
governments.
The bill has an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
As the country’s “baby-boom” population reaches retirement age and life expectancy increases, the
nation’s elder population is projected to increase from 49.2 million in 20161 to 77 million by 2034.2
Florida has long been a destination state for senior citizens and has the highest percentage of senior
residents in the entire nation.3 In 2018, Florida had an estimated 4.3 million people age 65 and older,
approximately 20 percent of the state’s population.4 By 2030, this number is projected to increase to
5.9 million, meaning the elderly will make up approximately one quarter of the state’s population and
will account for most of the state’s growth.5
Elder populations are vulnerable to abuse and exploitation due to risk factors associated with aging,
such as physical and mental infirmities and social isolation.6 In Florida, almost 1.3 million senior
citizens live in medically underserved areas and 1.4 million suffer from one or more disabilities.7
According to the Department of Justice, approximately 1 in 10 seniors is abused each year in the
United States, and incidents of elder abuse are reported to local authorities in 1 out of every 23 cases.8
Elder abuse can have significant physical and emotional effects on an older adult, and can lead to
premature death.9 Abused seniors are twice as likely to be hospitalized and three times more likely to
die than non-abused seniors.10
Elder abuse occurs in community settings, such as private homes, as well as in institutional settings
like nursing homes and other long-term care facilities. Prevalent forms of abuse are financial
exploitation, neglect, emotional or psychological abuse, and physical abuse; however, an elder abuse
victim will often experience multiple forms of abuse at the same time.11 The most common perpetrators
of elder abuse are relatives, such as adult children or a spouse; friends and neighbors; and home care
1 Press Release, U.S. Census Bureau, The Nation’s Older Population is Still Growing, Census Bureau Reports (June 22, 2017),
Release Number: CB17-100, https://www.census.gov/newsroom/press-releases/2017/cb17-100.html (last visited Mar. 24, 2021).
2 Press Release, U.S. Census Bureau, Older People Projected to Outnumber Children for First Time in U.S. History (revised Oct. 8,
2019), https://www.census.gov/newsroom/press-releases/2018/cb18-41-population-projections.html (last visited Mar. 24, 2021).
3 Where Do the Oldest Americans Live?, Pew Research Center, July 9, 2015, https://www.pewresearch.org/fact-
tank/2015/07/09/where-do-the-oldest-americans-live/ (last visited Mar. 24, 2021).
4 U.S. Census Bureau, Annual Estimates of the Resident Population for Selected Age Groups by Sex for the United States,
https://www.census.gov/newsroom/press-kits/2018/estimates-characteristics.html (last visited Mar. 24, 2021).
5 Florida Office of Economic & Demographic Research, Population Data: 2016, 2020, 2025, 2030, 2035, 2040, & 2045, County by Age,
Race, Sex, and Hispanic Origin, pp. 89-90 and 269-70, http://edr.state.fl.us/Content/population-
demographics/data/Medium_Projections_ARSH.pdf (last visited Mar. 24, 2021); Florida Office of Economic & Demographic Research,
Econographic News: Economic and Demographic News for Decision Makers, 2019, Vol. 1,: http://edr.state.fl.us/content/population-
demographics/reports/econographicnews-2019v1.pdf (last visited Mar. 24, 2021).
6 National Center on Elder Abuse, What are the Risk Factors?, https://ncea.acl.gov/About-Us/What-We-Do/Research/Statistics-and-
Data.aspx#risk (last visited Mar. 24, 2021); U.S. Department of Justice, Elder Justice Initiative, Older Adults, Families, and Caregivers,
https://www.justice.gov/elderjustice/victims-families-caregivers (last visited Mar. 24, 2021). See also, Xing Qi Dong et al., Elder Abuse
as a Risk Factor for Hospitalization in Older Persons, JAMA Intern Med. 173:10 at 911-917 (2013).
7 Department of Elder Affairs, 2018 Profile of Older Floridians,
http://elderaffairs.state.fl.us/doea/pubs/stats/County_2018/Counties/Florida.pdf (last visited Mar. 24, 2021).
8 U.S. Department of Justice, Elder Justice Initiative, https://www.justice.gov/elderjustice (last visited Mar. 24, 2021). See also, Ron
Acierno et al., Prevalence and Correlates of Emotional, Physical, Sexual, and Financial Abuse and Potential Neglect in the United
States: The National Elder Mistreatment Study, 100:2 Am. J. Pub. Health, at 292-297 (Feb. 2010),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2804623/ (last visited Mar. 24, 2021).
9 U.S. Department of Justice, Elder Justice Initiative, https://www.justice.gov/elderjustice (last visited Mar. 24, 2021). See also, Mark S.
Lachs et al., The Mortality of Elder Mistreatment, 280:5 JAMA at 428-432 (1998),
https://jamanetwork.com/journals/jama/fullarticle/187817 (last visited Mar. 24, 2021).
10 U.S. Department of Justice, Elder Justice Initiative, https://www.justice.gov/elderjustice (last visited Mar. 24, 2021). See also, Xing Qi
Dong et al., Elder Abuse as a Risk Factor for Hospitalization in Older Persons, JAMA Intern Med. 173:10 at 911-917 (2013).
11 National Center on Elder Abuse, Challenges in Elder Abuse Research, https://ncea.acl.gov/About-Us/What-We-
Do/Research/Statistics-and-Data.aspx#challenges (last visited Mar. 24, 2021).
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aides.12 Research indicates that elder abuse is underreported, often because the victims fear retribution
or care for or trust their perpetrators.13 Elder abuse deaths are more likely to go undetected because an
elder death is expected to occur, given age or infirmity, more so than other deaths due to abuse such
as a child death or a death involving domestic violence.14 Some experts believe this may be one of the
reasons elder abuse lags behind child abuse and domestic violence in research, awareness, and
systemic change.15
Disinheritance Laws
Current law prevents a person who intentionally kills or participates in procuring the death of another
person from receiving any assets from the victim’s estate.16 Therefore, if a person murders another
person, the murderer is not entitled to receive any property under the victim’s will or through intestacy.17
As cases of elder abuse and exploitation have increased, states have enacted laws to protect the
elderly population. There are currently eight states that have expanded their disinheritance laws to
include perpetrators of elder abuse and exploitation to prevent them from profiting from their
wrongdoing.18 The expansion of disinheritance law is effective because family members, who most
commonly commit elder abuse and exploitation, are the ones to inherit under a state’s intestacy laws
and are often beneficiaries under the decedent’s last will and testament. Some perpetrators are
motivated to commit financial abuse to purposefully modify the victim’s estate plan.19 Others
purposefully engage in abuse to speed up the victim’s death so they can inherit. When a disinheritance
law is applied to a case of elder abuse, the perpetrator is penalized and a would-be abuser may be
deterred from committing elder abuse.20
Chapter 825, F.S.
Social Isolation
Under current law, a person is guilty of abuse of an elderly person or disabled adult if he or she
commits:
Intentional infliction of physical or psychological injury;
An intentional act that could reasonably be expected to result in physical or psychological injury;
or
Active encouragement of any person to commit an act that results or could reasonably be
expected to result in physical or psychological injury.21
A caregiver is guilty of neglect of an elderly person or disabled adult if he or she:
Fails to provide an elderly person or disabled adult with the care, supervision, and services
necessary to maintain the elderly person’s or disabled adult’s physical and mental health,
including:
o Food,
o Nutrition,
o Clothing,
12 National Center on Elder Abuse, Who are the Perpetrators?, https://ncea.acl.gov/About-Us/What-We-Do/Research/Statistics-and-
Data.aspx#perpetrators (last visited Mar. 24, 2021).
13 Center for Disease Control and Prevention, Understanding Elder Abuse, Fact Sheet 2016,
https://www.cdc.gov/violenceprevention/pdf/em-factsheet-a.pdf (last visited Mar. 24, 2020).
14 U.S. Department of Justice, National Institute of Justice, Elder Justice Roundtable Report: Medical Forensic Issues Concerning
Abuse and Neglect, October 18, 2000, p. 8, https://www.ncjrs.gov/pdffiles1/nij/242221.pdf (last visited Mar. 24, 2021).
15 Id. at pp. 7-10.
16 S. 732.802, F.S.
17 With a will, a testator may devise the estate to whomever they prefer. Without a will, however, a deceased person’s estate is
distributed pursuant to the intestacy statutes, which devise a decedent’s estate according to default rules.
18 Arizona, California, Illinois, Kentucky, Maryland, Michigan, Oregon, and Washington. Natasa Glisic, Expanding the Slayer Rule in
Florida: Why Elder Abuse Should Trigger Disinheritance, 22 Barry L. Rev. 111 (2016),
https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1119&context=barrylrev (last visited Mar. 24, 2021).
19 Id.
20 Id.
21 S. 825.102, F.S.
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o Shelter,
o Supervision,
o Medicine, and
o Medical services; or
Fails to make a reasonable effort to protect an elderly person or disabled adult from abuse,
neglect, or exploitation by another person.22
Current law does not expressly prohibit intentional isolation of an elderly person. Elder isolation occurs
most frequently with victims who either lack the mental capacity to fully appreciate or react to the
isolation or with victims who are dependent on a perpetrator for their physical care and wellbeing.23 The
perpetrator, who is typically a family member or other person the victim trusts, utilizes social isolation to
exert control and influence over the victim with the intent to conceal abuse, neglect, or exploitation.
Exploitation by a Fiduciary
A person who is in a position of trust and confidence with an elderly person, who has a business
relationship with the elderly person, or who knows or reasonably should know that an elderly person
lacks the capacity to consent, is guilty of exploitation of the elderly person or disabled adult if he or she
obtains, uses, or conspires with another to obtain or use an elderly person’s property with the intent to:
Deprive the elderly person of the use, or
Benefit someone other than the elderly person. 24
Moreover, current law prohibits:
Breach of a fiduciary duty to an elderly person or disabled adult by the person’s guardian,
trustee who is an individual, or agent under a power of attorney which results in an unauthorized
appropriation, sale, or transfer of property.
Misappropriating, misusing, or transferring without authorization money belonging to an elderly
person from an elderly person’s account.
Intentionally or negligently failing to effectively use an elderly person’s income and assets for
the necessities required for that person’s support and maintenance, by a caregiver or a person
who stands in a position of trust and confidence. 25
Current elder law does not expressly prohibit exploitation by a fiduciary for the benefit of a third party or
exploitation by intentionally modifying or altering an estate plan or trust.
Office of Statewide Prosecution
The Attorney General's Office of Statewide Prosecution (OSP) is authorized to prosecute certain
criminal activities which occur in, or affect, two or more judicial circuits, such as:
Bribery;
Burglary;
Criminal usury;
Extortion;
Gambling;
Kidnapping;
Larceny;
Murder;
Prostitution;
Perjury;
22 Id.
23 Sandy Baksys, Elder Isolation is Elder Abuse, Illinois Task Force on Elder Abuse (Aug. 29, 2019), https://lithspringfield.com/elder-
isolation-is-elder-abuse/ (Mar. 24, 2021).
24 For the purposes of this section, a fiduciary is a person in a position of trust and confidence, has a business relationship with the
elderly person or disabled adult, or a person who knows or reasonably should know that the elderly person lacks the capacity to
consent.
25 S. 825.103, F.S.
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Robbery and home-invasion robbery;
Carjacking;
Narcotics violations;
Violations of the provisions of the Florida Racketeering Influenced and Corrupt Organization
(RICO) Act, Florida Anti-Fencing Act, or the Florida Anti-Trust Act;
Computer pornography; and
Any crime involving, or resulting in, fraud or deceit upon any person.26
The Office of Statewide Prosecution is authorized to act throughout Florida and works closely with law
enforcement and state attorneys to coordinate the prosecutions of multi-circuit violations of State law.27
In March 2019, the Attorney General’s Office created of the Senior Protection Team to protect
vulnerable seniors from fraud, exploitation, and other crime and abuse.28 Section 16.56, F.S.,
enumerates the specific criminal violations the OSP has authority to investigate and prosecute;
however, chapter 825, F.S., offenses of abuse, neglect, and exploitation of elderly persons or disabled
adults are not included within the list of criminal violations over which OSP has authority to investigate
and prosecute. 29
Civil Injunctions against Exploitation of Vulnerable Adults