Florida Elder Law & Estate Planning Blog
New federal law addresses increasing incidence of elder abuse by court-appointed guardians
January 28, 2018
The Elder Abuse Prevention and Prosecution Act became law in October, 2017. The result of rarely-seen bipartisan cooperation in Washington, the law seeks to stem the growing tide of elder abuse and fraud by court-appointed guardians, as well as curb other forms of elder exploitation.
As I noted in a prior post, there is growing concern about elder abuse perpetrated by guardians appointed by the court to handle incapacitated persons’ affairs. With lax oversight, an unethical guardian can too easily neglect a ward or plunder his/her assets. Fortunately, most court-appointed guardians are good souls trying to best serve their wards. But, as reports from around the country reveal, not all court-appointed guardians are well-intended, and the problem is getting worse as the population ages.
Florida has introduced some new regulations to better supervise court-appointed guardians. Now, with the Elder Abuse Prevention and Prosecution Act, the federal government is stepping up to the plate, too. The law designates federal resources to help monitor and prosecute elder abuse and exploitation cases. Some of its key provisions are:
- The Justice Department will assign a minimum of one U.S. assistant attorney (an “elder justice coordinator”) to every federal judicial district. The individual will have the authority to investigate complaints about wrongdoing by court-appointed guardians, prosecute cases, and train and bring in FBI agents to recognize, investigate and pursue such cases.
- The Federal Trade Commission will also appoint an Elder Justice Coordinator responsible for “coordinating and supporting the enforcement and consumer education efforts and policy activities of the Federal Trade Commission on elder justice issues.” The FTC will be required to submit an annual report to Congress regarding all the cases of elder fraud it handled that year.
- The Department of Justice will post cases of elder abuse handled by the federal law enforcement and publish them on its website.
- To crack down on scammers preying on the elderly, more severe penalties are introduced. These enhanced penalties will apply to cases in which the victim is over age 55; defrauding is done by telemarketing, email, text message, or instant electronic message; and the scam gets the victim to participate in a business opportunity, commit to a loan, or participate in a medical study. Enhanced penalties include mandatory forfeiture of property or assets the perpetrator has acquired, as well as property the perpetrator used to defraud the victim.
Of course, the best way to avoid being victimized by an unethical court-appointed guardian is to make legal plans so that you never become the subject of a court-ordered guardianship. At the very least, a well-crafted durable power of attorney and medical surrogate are needed. These plans must be made before incapacity strikes. Check out The Karp Law Firm website for strategies to avoid guardianship.
Read the text of the new law here.