PROBATE CORNER
PROBATE CORNER
The Elder Abuse Epidemic – No Cure In Sight
DAVID M. GARTEN
The Florida legislature has been proactive in trying to stop elder abuse by enacting numerous criminal statutes. However, given the court’ s funding problems, very few elder abuse cases are actually prosecuted. On the civil side, there are only two statutes providing civil remedies for elder abuse, § 415.1111 and § 772.11, F. S. These statutes are hidden in the criminal statutes and are rarely used by civil litigators given the risks associated with pursing these remedies, such as prevailing party attorney’ s fees, § 57.105, and Florida Bar Rule 4-1.14. In addition, certain authorized individuals can petition the court for an injunction for protection against exploitation of a vulnerable adult. The injunction does not affect title to real property and the petitioner is subject to damages if the petition lacks substantial fact or legal support. See § 825.1035, F. S., PBC Adm Order No. 6.313-7 / 22, and Rule 5.920( Form). As a result, it’ s still“ open season” on the elderly. This problem is succinctly outlined in § 15600, Cal. Stat. titled“ Needs and problems of the elderly and dependent adults”. On the civil side, California is proactive in trying to curb the rise of elder abuse by enacting California Welfare and Institutions Code, Article 8.5, titled“ Civil Actions for Abuse of Elderly or Dependent Adults”(§§ 15657- 15657.8)(“ Elder Abuse Act”). Case in point: Herren v. George S., 109 Cal. App. 5th 410; 330 Cal. Rptr. 3d 458( Cal. App. 2025).
Factual Background: In Herren, George and his former wife, Dalyla, have two adult children, Susannah and Gabriella. In 1991, George created a trust which was restated in 2022. He designated Susannah as his health care surrogate, agent under his POA, and as successor co-trustee in the event of his incapacity. The trust defines incapacity to include when a“ medical doctor, … or( in the case of the Settlor) the Settlor ' s treating physician, examines such person and declares under penalty of perjury that such person is either temporarily or permanently incapacitated ….” The trust also provides:“ If any trustee or any beneficiary whose capacity is in question disputes the determination of incapacity …, such person may petition the court for a finding regarding that person ' s capacity.”
In February 2023, George’ s geropsychologist believed the dementia had become severe, and she wrote a letter opining that George lacked capacity to make medical and financial decisions. Contemporaneously, George ' s neurologist wrote a letter to the same effect.
On May 3, 2024, while Susannah was out of town and without her or the caregivers ' prior knowledge, her sister, Gabriella, allowed Herren— a trust and estate attorney— into George ' s home to meet with George. During that meeting, George signed a fee agreement to pay Herren ' s firm a $ 100,000 retainer. The same day, Herren sent a demand letter for payment to the co-trustees of George ' s trust and the Stimmel law firm which prepared the 2022 restated trust.
Petition for a Restraining Order: On May 8, 2024, Susannah filed a petition for a restraining order seeking protection for George pursuant to the Elder Abuse Act. The application sought an order prohibiting Herren from financially abusing George and disturbing his peace. The evidentiary hearing followed.
Testimony at Evidentiary Hearing: Dr. Sutherland is an expert in geropsychology with a background in neuropsychological evaluations including capacity evaluations. Dr. Sutherland testified that she sees George about once a week and has diagnosed him with“[ m ] ajor neurocognitive disorder, multifactorial, Alzheimer ' s and Lewy body with behavioral challenges,” which is a“ severe dementia.” She believes that George lacks capacity to make financial and medical decisions and that Herren should be kept away from George if her goal is to have him sign contracts and ask him for money. Given the severity of his dementia, George would not seek out an attorney, nor could he communicate goals in detail. In Dr. Sutherland ' s view, someone meeting George should know within about five minutes that something is“ amiss.” The testimony from Karen Moore, a certified nursing assistant and George’ s home health aide for the past 3 ½ years, and Susannah were consistent with Dr. Sutherland’ s testimony.
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