Imagine standing in front of the cashier at the supermarket and your debit card is declined. Confused, you step outside to call your bank. A representative explains that there is a court ordered freeze on the account. You return home, upset and wondering how you will purchase food for the week. The next day, a sheriff’s deputy knocks at your door and serves you with a copy of a petition and a “temporary injunction.” The petition says you are the victim of exploitation and the injunction freezes all your accounts. A notice says that a final hearing will not be held for another ten (10) days.
What is financial exploitation and how do financial injunctions stop it?
Financial exploitation occurs when the exploiter takes advantage of a confidential relationship, which may involve at relationship of trust, a business relationship, a fiduciary position, diminished capacity, joint bank accounts or a caregiver relationship, with the vulnerable adult in order to deprive the vulnerable adult of his or her property for the exploiter’s own benefit.
A “vulnerable adult” is defined as
- A person 18 years of age or older;
- Whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired;
- Due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”
A financial injunction is an order of the court designed to stop economic exploitation of “vulnerable adults” before it occurs (or at least to quickly prevent further exploitation). The injunction does not require that exploitation already occurred. Rather, “an immediate and present danger of exploitation” is sufficient.
A financial injunction may (without limitation) restrain the exploiter from acts of exploitation against the vulnerable adult; award exclusive use of a residence to the vulnerable adult; bar respondent from the residence; freeze assets whether in the respondent’s name or the vulnerable adult’s name; freeze lines of credit; prohibit the respondent from having contact with the vulnerable adult; and provide directives to law enforcement.
If the court freezes the vulnerable adult’s account(s), the court may make an exception to pay the vulnerable adult’s living expenses; however, the court is not required to make such exception and may omit it if the vulnerable adult and/or his or her representative is not present at the hearing. A temporary injunction can be obtained without prior notice to the vulnerable adult or the respondent (ex parte). A final hearing is required within fifteen (15) days – a long time when your bank account is frozen, and you need to buy groceries and pay utilities.
Who can request an injunction?
Anyone who falls within one of the categories that follow may petition the Circuit Court for an injunction against exploitation of a vulnerable adult and are not required to be represented by an attorney:
- A vulnerable adult.
- The guardian of a vulnerable adult.
- A person or organization acting with the vulnerable adult or guardian’s consent.
- A person who simultaneously files petitions for determination of incapacity and appointment of an emergency temporary guardian with respect to the vulnerable adult.
When may the court grant a temporary injunction?
The court may grant a temporary injunction ex parte if it finds:
- An immediate and present danger of exploitation of the vulnerable adult exists.
- There is a likelihood of irreparable harm and non-availability of an adequate remedy at law (damages).
- There is a substantial likelihood of success on the merits.
- The threatened injury to the vulnerable adult outweighs possible harm to the respondent.
- Granting a temporary injunction will not disserve the public interest.
- Such injunction provides for the vulnerable adult’s physical or financial safety.
If an injunction has been filed against you, you have the right to respond. Consider speaking with an elder law attorney about your important legal rights. Likewise, if you are interested in petitioning for an injunction to protect a vulnerable adult against financial exploitation, consider consulting with an elder law attorney about the process.
Matthew D. Barry> is board certified by The Florida Bar as a expert in Elder Law. Mr. Barry is an associate attorney at Lyons, Beaudry & Harrison, P.A., 1605 Main Street, Suite 1111, Sarasota, Florida 34236; phone: 941-366-3282. He focuses his practice on guardianship law, wills, trusts and estates and public benefits (including Medicaid planning).