Is An Assisted Living Facility Responsible When Employees Coerce Residents Into Making “Gifts”?

Elderly individuals move to Florida at a higher rate than anywhere else.  As a result, predatory individuals such as caregivers, aids, and others prey on the elderly or infirmed.  The predatory actions frequently result in changes to the elderly individual’s estate plan including procuring lucrative gifts, obtaining deeds to their benefit, beneficiary designation changes on life insurance policies, transfer or pay on death accounts, among others. 

Scenarios where this type of procurement occurs may be at an assisted living facility, independent living facility, continuing care facility, home health aides, long term health care providers, hospitals, outpatient and other rehab centers.

In the recent decision of ACTS v Zimmer, (4th DCA 2016), an elderly resident (“Decedent”)—during the waning years of his life—resided at a facility at an independent and continuing care facility.  Decedent continued to reside there following the death of his wife when he was “befriended” by multiple employees.

In short order, Decedent gave—among other gifts—at least $30,000 and a $42,000 Mercedes to one such predatory employee.  Based on the Court’s opinion, it appears that this employee was not the only one on the receiving end of Decedent’s gratuitous behavior. 

Decedent’s son got wind of the lavish gifts his father was doling out and the employee was terminated from the facility because accepting gifts from residents was against the facility’s policy.  After termination, other facility employees would drive Decedent to the terminated employee’s home where the terminated employee continued to receive gifts.  The terminated employee would even pick up Decedent from the facility directly.

After Decedent’s death, litigation was commenced against the terminated employee and the facility by Decedent’s estate. The terminated employee settled out of court for an undisclosed amount. A verdict was entered against the independent and continuing care facility at trial for negligent supervision. On appeal the facility ultimately escaped liability for negligent supervision because the actions of the non-terminated employees—such as driving the Decedent to and from the terminated employee’s home—were not underlying torts themselves.

Notwithstanding the reversal on appeal, predatory employees are taking advantage of the elderly and infirmed at an alarming rate.

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Broward County (Ft. Lauderdale)

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Matthew Weidner

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Dawn Bates-Buchanan

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Jon L. Martin

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