PBCBA BAR BULLETINS pbcba_bulletin_april 2018 | Page 17

PROBATE C o r n e r
Injunction For Protection Against Exploitation
DAVID M. GARTEN
Watch out exploiters, there is a new statute
in town to protect the elderly - §825.1035,
F.S.! This statute creates a cause of action
for an injunction for protection against
the exploitation of a vulnerable adult. Sec.
825.1036, F.S. pertains to enforcement of
the injunction. If approved by the Governor,
these statutes will take effect on July 1,
2018.
EX PARTE TEMPORARY INJUNCTION:
Pursuant to §825.1035(5), the court may
grant an ex parte temporary injunction for
the following relief:
a. Restraining the respondent [exploiter]
from committing any acts of exploitation
against the vulnerable adult;
b. Awarding to the vulnerable adult the
temporary exclusive use and possession
of the dwelling that the vulnerable adult
and the respondent share, or barring the
respondent from the residence of the
vulnerable adult;
c. Freezing any assets of the vulnerable
adult in any depository or financial
institution whether titled solely in the
vulnerable adult's name, solely in the
respondent's name, jointly with the
respondent, in guardianship, in trust, or in
a Totten trust;
d. Freezing any line of credit of the
vulnerable adult at any depository or
financial institution whether listed solely
in the vulnerable adult's name or jointly
with the respondent;
e. Prohibiting the respondent from having
any direct or indirect contact with the
vulnerable adult; or
f. Providing any injunctions or directives to
law enforcement agencies.
WHO MAY FILE? The cause of action for an
injunction may be sought by:
a. A vulnerable adult in imminent danger of
being exploited;
b. The guardian of a vulnerable adult in
imminent danger of being exploited;
c. A person or organization acting on behalf
of the vulnerable adult with the consent of
the vulnerable adult or his or her guardian;
or
d. A person who simultaneously files a
petition for determination of incapacity and
appointment of an emergency temporary
guardian with respect to the vulnerable
adult.
POLICE ASSISTANCE: “When an injunction
for protection against the exploitation of a
vulnerable adult is issued, if the petitioner
requests that a law enforcement agency
assist the vulnerable adult, the court may
order that an officer from the appropriate
FINAL HEARING: At the final hearing, the law enforcement agency accompany the
court may grant such relief as the court vulnerable adult and assist in the service
deems proper, including, but need not be or execution of the injunction, including
limited to, injunctions doing any of the returning possession of a dwelling or
following:
residence to the vulnerable adult.” Refer to
§825.1035(10)(a)3, F.S.
a. Continuing the temporary injunction in
part or in whole;
ENFORCEMENT [§825.1036]: “The court
b. Restraining the respondent from may enforce a violation of an injunction
committing any acts of exploitation;
for protection against the exploitation of a
c. Awarding to the vulnerable adult the vulnerable adult through a civil or criminal
exclusive use and possession of the dwelling contempt proceeding, and the state attorney
that the vulnerable adult and the respondent may prosecute it as a criminal violation
share or excluding the respondent from the under s.825.1036 [Emphasis added].” “If the
residence of the vulnerable adult, if the respondent is arrested by a law enforcement
court finds that the vulnerable adult is able officer under s.901.15(6) or for a violation of
to reside safely without the respondent;
s.825.1036, the respondent must be held in
d. Ordering the respondent to participate custody until he or she is brought before the
in treatment, intervention, or counseling court, which must occur as expeditiously
services to be paid for by the respondent;
as possible, for the purpose of enforcing
e. Directing that assets under temporary the injunction for protection against the
freeze by injunction be returned to the exploitation of a vulnerable adult and for
vulnerable adult, or directing that those admittance to bail in accordance with
assets remain frozen until ownership chapter and the applicable rules of criminal
can be determined; and directing that the procedure, pending a hearing.” Refer to
temporary freeze on any line of credit be §825.1035(11), F.S.
lifted;
f.
Where the court has found that the WRONGFUL FILING: “Actual damages may
respondent ha engaged in exploitation of be assessed in a proceeding under this
the vulnerable adult, entering a final cost section if the court finds that the petition
judgment against the respondent and in was without substantial fact or legal
favor of the petitioner for all costs, and support.” Refer to §825.1035(12), F.S.
entering a final cost judgment against the
respondent and in favor of the clerk of
the circuit court for all clerk's filing fees 1 As of 2/19/18, these statutes were still under re-
and service charges that were waived by view by the House [HB 1059 (2018)] and Senate [SB
1562 (2018)]. This article merely summarizes cer-
operation of this section; or
tain aspects of the current drafts of §§825.1035 and
g. Ordering such other relief as the court 825.1036, F.S. and is not meant to be a detailed sum-
deems necessary for the protection of a mary of the final version of both statutes, which are
victim of exploitation, including injunctions extensive.
or directives to law enforcement agencies,
as provided in this section.
PBCBA BAR BULLETIN
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