We recently have been involved in a case which highlights the distinction between exploitation and guardianship. An elderly gentleman was being systematically robbed by a younger woman he was infatuated with. She obtained power of attorney and withdrew over $100,000 from his accounts in less than 4 months, before the banks froze those accounts, reported suspicious activity to DCF (Florida Department of Children and Families), and a third party intervened to file a guardianship. Had she continued at that pace, he would have been flat broke in a little over a year.

The problem is that this gentleman was found by the examining committee to be mentally competent. If someone is mentally competent, a guardianship cannot be established “to protect him from exploitation”, even if it is crystal clear that he is being exploited. Guardianship law simply is not designed to protect competent people from their own stupidity or folly, no matter how severe. Exploitation alone is not proof of incapacity. If the mental health professionals deem someone competent, that is the end of the guardianship road.

Protection of the elderly from exploitation is the job of DCF and the criminal justice system through the office of the State Attorney. If the system is to work, DCF must do a proper job investigating complaints and then referring verified findings of exploitation to the State Attorney for prosecution. The State Attorney’s office must then vigorously prosecute. Unfortunately, in my experience, this does not always happen. It did not happen in this case. This has resulted in many inappropriate emergency guardianship filings, which clog the system and can, at least temporarily, deprive people of their rights and money until they are examined and successfully navigate through the guardianship process. Tax dollars are supposed to be used to protect the elderly from abuse, rather than (well-meaning) people attempting to use the senior’s own money to protect him from himself (and being paid to do it) thereby constituting a “double” abuse and drain on that person’s assets.

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