I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I spent years in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, an office of more than 100 attorneys, and today our attorneys defend abuse, neglect, and exploitation charges involving elderly and disabled adults throughout Hillsborough, Pinellas, and Pasco Counties.

What Counts as Elder Abuse Under Florida Law?

Elder abuse is an intentional act against a legally “elderly person” or “disabled adult” that causes or could reasonably be expected to cause physical or psychological injury. Section 825.102(1), Florida Statutes, lists four ways to commit it: intentionally inflicting physical or psychological injury; committing an intentional act that could reasonably be expected to result in such injury; actively encouraging another person to commit an act that results or could reasonably be expected to result in such injury; or, since 2021, intentionally isolating the person or restricting access to family members in order to cause injury or to facilitate a crime against the person. Abuse without great bodily harm, permanent disability, or permanent disfigurement is a third-degree felony. There is no misdemeanor version.

The statute protects two groups, and the definitions in section 825.101 are elements the State must prove at trial. An “elderly person” is someone 60 or older “who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning,” to the extent that the ability to provide for his or her own care or protection is impaired. A “disabled adult” is someone 18 or older with a physical or mental incapacitation from developmental disability, organic brain damage, or mental illness, or with physical or mental limitations that restrict the normal activities of daily living. A “caregiver,” the person who can be charged with neglect, is anyone who has been entrusted with or has assumed responsibility for the person’s care or property, including relatives, household members, neighbors, health care providers, and facility employees.

These charges are brought against family members far more often than against strangers. In our experience the typical Hillsborough County defendant is an adult child or spouse caring for a parent or partner at home, and the case begins with a call to the Florida Abuse Hotline rather than with a police report. That matters, because the same conduct between two unrelated adults would usually be a misdemeanor battery or no crime at all. Our Tampa violent crimes attorney page covers the battery and aggravated battery charges that are frequently filed alongside these counts.

Who Is an “Elderly Person”? Why Age Alone Is Not Enough

Being 60 or older does not make someone an “elderly person” under Florida’s criminal statutes. The State must also prove an infirmity of aging that impairs the person’s ability to care for or protect himself or herself. The Second District Court of Appeal, whose decisions bind every trial court in Hillsborough, Pinellas, and Pasco Counties, decided the point in Watson v. State, 95 So. 3d 977 (Fla. 2d DCA 2012). Bobby Watson entered the St. Petersburg home of a 79-year-old acquaintance, demanded money, and when refused beat and strangled the man and took his wallet. A Pinellas jury convicted him of abuse of an elderly person. The Second District reversed. The victim lived alone, exercised, rode a bicycle, flew to Florida unaccompanied to testify, and had cancelled his own credit cards after the robbery. The court held that the statute requires proof of three elements: the person is 60 or older; the person suffers from an infirmity of aging that produces physical, mental, or emotional dysfunction; and that dysfunction impairs the ability to provide for his or her own care or protection. Evidence of functionality, the court said, is the opposite of the dysfunction the statute requires, and the fact that a younger, larger attacker could overpower the victim proved nothing about age-related impairment. The court ordered the conviction reduced to misdemeanor battery, and noted that the State could have charged strong-arm robbery instead.

Watson is the first question our attorneys ask in every elder abuse file. Prosecutors frequently charge under chapter 825 because the alleged victim is a certain age, without medical evidence of impairment. When the person drives, manages money, lives independently, or testifies clearly at deposition, the “elderly person” element fails and the felony fails with it. The same element applies to neglect and exploitation charges. The State often uses the “disabled adult” definition as a fallback, but that too requires proof of a qualifying condition or limitation, and it must be charged and proved, not assumed.

What Is the Difference Between Abuse, Aggravated Abuse, and Neglect?

Abuse is an intentional act, aggravated abuse is an intentional act that involves aggravated battery, torture, malicious punishment, caging, or great bodily harm, and neglect is a caregiver’s failure to provide care. The table below sets out the elements and penalties under section 825.102, with the sentencing levels from the Criminal Punishment Code chart in section 921.0022.

Neglect is the charge most often filed against family caregivers, and its definition is broad. It covers a failure to provide “food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential,” and it can be based on a single incident that creates a substantial risk of death or serious injury, or on repeated conduct. The mental state is “willfully or by culpable negligence,” which means the State does not need to prove that the caregiver intended harm. The statute writes in one defense: a person charged under the isolation provision in subsection (1)(d) may show reasonable cause to believe the action was necessary to protect the person from danger. Nothing in the statute addresses a competent adult’s own refusal of care, so in neglect cases our attorneys prove that refusal through the parent’s physicians and the parent’s own testimony, because a prudent caregiver cannot force medication or a doctor’s visit on a competent adult.

The sentencing numbers explain why the degree of the charge matters so much. Under section 921.0024, a defendant with 44 or fewer total points may receive a non-prison sentence. A Level 6 abuse or neglect count scores 36 points as the primary offense, so a first offender with no injury points stays below the line. Any Level 7 or Level 8 count scores above 44 on its own, and the lowest permissible sentence becomes months in state prison, roughly 21 months at 56 points and 34 months at 74 points before any injury or prior-record points. Moving a case from subsection (2) to subsection (1), or from neglect with great bodily harm to simple neglect, is the difference between probation and a prison term.

What Is Exploitation of an Elderly Person, and How Is It Graded?

Exploitation is a property crime against an elderly or disabled adult, and it is graded by the amount taken. Section 825.103, Florida Statutes, defines it six ways: knowingly obtaining or using the person’s funds, assets, or property with intent to deprive the person of them, by someone who stands in a position of trust and confidence or has a business relationship with the person; obtaining or using the property while knowing the person lacks capacity to consent; breaching a fiduciary duty as guardian, trustee, or agent under a power of attorney so as to produce an unauthorized transfer, kickback, or improper benefit; misappropriating funds from a personal, joint, or convenience account to which the person was the sole contributor; a caregiver’s or trusted person’s intentional or negligent failure to use the person’s income and assets for the person’s necessities; and, since 2014, obtaining property through a fraudulent will, trust, or other testamentary instrument.

Two features of the exploitation statute catch family members by surprise. First, a “position of trust and confidence” includes any relative, joint tenant, guardian, trustee, agent, or caregiver, so a son who has been added to his mother’s checking account for convenience is within the statute the moment a withdrawal is disputed. Second, section 825.103(2) creates a permissive presumption of exploitation when an elderly person makes a gift or transfer of more than $10,000 to a non-relative the person has known for less than two years, unless the transfer is documented as a loan. Under section 825.103(4), a court may hold a hearing before trial to order property returned to the alleged victim when the loss exceeds $5,000, so exploitation defendants often face a restitution fight before the criminal case has been decided.

The defense that most often wins exploitation cases is that the transfer was a gift or a payment the person had capacity to make. In Franke v. State, 188 So. 3d 886 (Fla. 4th DCA 2016), a stockbroker named as trustee and residuary beneficiary of a longtime friend’s trust was convicted of exploitation; the Fourth District reversed and ordered her discharged, because the State’s circumstantial evidence could not exclude the reasonable hypothesis that the designation was an unsolicited gift from a friend of thirty years. The court also observed that every reported exploitation case it could find involved a present transfer of property, not a future expectancy under a will or trust. In our Tampa Bay practice the same principle governs the ordinary case: when a parent with capacity signs the check, adds the name to the deed, or hands over the card, the State must prove the son or daughter took the property with intent to deprive, and the parent’s own testimony, medical records, and prior pattern of gifts are the evidence that decides it.

Restitution follows its own rules. In Eylward v. State, No. 2D18-2169 (Fla. 2d DCA Feb. 5, 2020), a Pinellas County exploitation defendant was convicted at the lowest value tier and the trial court set restitution at zero; the Second District reversed and held that the court must determine restitution by a preponderance of the evidence and is not limited by the dollar thresholds of the offense of conviction. A plea to the third-degree tier does not cap what the court can order repaid.

How Big Is the Problem, and Why Does It Drive Aggressive Charging?

Florida ranks second in the nation for reported fraud against older adults, and that ranking shapes how prosecutors treat every chapter 825 case. According to the FBI’s 2023 Elder Fraud Report, the Internet Crime Complaint Center received 8,138 complaints from Florida victims over 60 in 2023, with reported losses of $293.8 million, second only to California. Nationally, victims over 60 reported losses topping $3.4 billion that year. Those figures count only internet-facilitated fraud reported to the FBI. The National Elder Mistreatment Study, a survey of 5,777 older adults published in the American Journal of Public Health in 2010 by Acierno and colleagues, found one-year prevalence rates of 4.6 percent for emotional abuse, 1.6 percent for physical abuse, 5.1 percent for potential neglect, and 5.2 percent for financial abuse by a family member, with roughly one in ten respondents reporting some form of mistreatment (Acierno et al., Am. J. Pub. Health 100(2):292–297). The same study found that low social support was the most consistent risk factor across every category.

Those numbers cut both ways for a defendant. They explain why the State Attorney’s Office files these cases readily and rarely declines them at intake. They also explain why juries are receptive to the defense that a stressed family caregiver, often the only person providing support to an isolated parent, is not the predator the statute was written for. Our attorneys use that context in negotiations and at trial.

How Does an Elder Abuse Investigation Work in Hillsborough County?

Most cases start with the Florida Abuse Hotline and an Adult Protective Services investigation, not an arrest. Under section 415.104, Florida Statutes, a report of abuse, neglect, or exploitation of a vulnerable adult goes to the Department of Children and Families, and when the APS investigator has reason to believe a second party is responsible, the investigator must orally notify law enforcement and the State Attorney and follow with a written report within five working days. In Hillsborough County that referral typically goes to the Hillsborough County Sheriff’s Office or Tampa Police, whose detectives then interview the alleged victim, the caregiver, and the treating physicians and pull bank records. The APS investigator’s interview with the caregiver, conducted before any arrest and without Miranda warnings because APS is not law enforcement, is frequently the most damaging statement in the criminal case.

Hillsborough County also has a resource that most Florida counties do not. The Thirteenth Judicial Circuit’s Elder Justice Center, located at the courthouse, serves people 60 and older and provides case management, social service coordination, and assistance to senior victims of abuse and exploitation moving through the court system. In our experience that means an alleged victim in a Hillsborough case is more likely to be supported through deposition and trial than in neighboring counties, and less likely to become unavailable, which affects how the State evaluates the case.

The other feature that sets these cases apart is the hearsay problem. In Conner v. State, 748 So. 2d 950 (Fla. 1999), the Florida Supreme Court struck down the hearsay exception for statements of elderly persons in criminal cases, holding that it violated the defendant’s right of confrontation; the 84-year-old victim in that Second District case had died before trial, and the State tried to use his statements to police. The Legislature rewrote section 90.803(24) in 2014 so that it applies only when the declarant is unavailable and the statement is corroborated, and the United States Supreme Court’s Crawford decision independently bars testimonial statements to police unless the witness testifies. The practical result is that the State usually needs the alleged victim on the witness stand. When the person cannot testify, or testifies that the defendant did nothing wrong, the case is often over.

How Do Our Attorneys Defend Elder Abuse, Neglect, and Exploitation Charges?

By contesting the elements the State assumes rather than proves, in this order:

1. The “elderly person” or “disabled adult” element. Under Watson, age is not enough. We obtain medical records, deposition testimony, and evidence of the person’s daily functioning to show that no infirmity of aging impaired his or her ability to provide for self-care or protection. When the element fails, a felony abuse count becomes at most a misdemeanor battery.
2. Caregiver status. Neglect requires proof that the defendant was a caregiver who had been entrusted with or assumed responsibility for the person’s care. A relative who visited on weekends, or a sibling who was never the primary caregiver, does not meet that definition.
3. Capacity and consent. In exploitation cases, a parent who had capacity and chose to make a gift, pay a bill, or add a name to an account did not have property taken from him or her. Franke shows how far this defense reaches, and treating-physician records and the parent’s own statements are the proof.
4. The medical cause of the injury. Pressure sores, falls, weight loss, and dehydration in a bedbound or demented adult have medical causes that are unrelated to the quality of care in many cases. We retain geriatric medicine experts to review the records the State relies on.
5. The APS statement. Statements to an Adult Protective Services investigator are not covered by Miranda, but they can be attacked as involuntary, incomplete, or mischaracterized, and the investigator’s notes rarely match the caregiver’s account word for word.
6. Degree and disposition. Because every chapter 825 offense is a felony, the achievable outcome in many family cases is a reduction to a Level 6 count, a withhold of adjudication, and probation with conditions. The choice of count matters for the record as well as the sentence: under section 943.0584, a plea to abuse or aggravated abuse under section 825.102 can never be sealed, even with a withhold, while a plea to neglect or to exploitation is not on the ineligible list and can be sealed by an otherwise eligible defendant.

For more about our defense strategies, visit our Tampa violent crimes attorney page. Related articles cover assault charges in Florida and how to fight a domestic violence battery charge in Florida, the charge most often filed alongside a family elder abuse count.

What Should You Do If You Are Accused of Elder Abuse in Tampa?

Stop talking to the investigator and call a lawyer before the APS interview, not after the arrest. Adult Protective Services moves faster than the criminal case, and the caregiver’s explanation to the investigator becomes the State’s evidence of what the caregiver knew and when. Preserve everything that shows the care you actually provided: pharmacy records, appointment histories, receipts, text messages with siblings and doctors, and photographs. If the allegation is financial, gather the account records, the power of attorney, and any writing in which the parent expressed his or her wishes. Do not remove the parent from the home or restrict family visits in response to the accusation; under the 2021 amendment, isolating the person from family can itself be charged as abuse.

The pre-file window decides more of these cases than trial does. In our experience the Hillsborough State Attorney’s Office will reconsider a felony abuse charge when the defense delivers medical evidence that the alleged victim lived independently, and will reconsider an exploitation charge when the parent’s own physician confirms capacity at the time of the transfer. Both showings require records that take weeks to gather, so the work has to start when the hotline report is made.

Frequently Asked Questions About Elder Abuse Charges in Florida

Is elder abuse a felony or a misdemeanor in Florida?

Every elder abuse offense under chapter 825 is a felony; there is no misdemeanor version. Abuse and neglect are third-degree felonies, neglect causing great bodily harm is a second-degree felony, aggravated abuse is a first-degree felony, and exploitation ranges from third to first degree by dollar amount. Our attorneys’ first objective is usually to show that the “elderly person” element fails, which reduces an abuse count to misdemeanor battery.

Can a family caregiver be charged with neglect of an elderly person in Florida?

Yes. Section 825.102(3) applies to any “caregiver,” which includes relatives and household members who have assumed responsibility for the person’s care, and the mental state is willfulness or culpable negligence, not intent to harm. The statute’s only written defense covers isolating a person from family to protect him or her from danger, so in neglect cases the practical defense is that the caregiver acted as a prudent person would, including honoring a competent adult’s refusal of care.

What is the penalty for exploitation of an elderly person in Florida?

Up to five years in prison for less than $10,000, up to 15 years for $10,000 to $49,999, and up to 30 years for $50,000 or more, plus restitution that is not capped by the tier of conviction. Because the two higher tiers score above 44 points on the Criminal Punishment Code scoresheet, prison is the presumptive sentence for them even for a first offender. The Brancato Law Firm, P.A. treats the value and capacity elements as the case, because they determine both the degree and the scoresheet.

Does being over 60 automatically make someone an “elderly person” under Florida law?

No. Under Watson v. State, the Second District decision that binds Tampa Bay courts, the State must prove that the person is 60 or older and that an infirmity of aging impairs his or her ability to provide for self-care or protection. A 79-year-old who lived alone, exercised, and managed his own affairs was not an “elderly person,” and the felony conviction was reduced to misdemeanor battery.

Can I be charged with exploitation for money my parent gave me?

You can be charged, but a gift from a parent who had capacity is a complete defense. The State must prove that you obtained the property with intent to deprive your parent of it and that you either stood in a position of trust and confidence or knew your parent lacked capacity to consent. Under Franke v. State, evidence consistent with an unsolicited gift is enough to defeat a circumstantial exploitation case, and our attorneys build that record from the parent’s physicians, prior gifts, and the parent’s own statements.

Will an elder abuse arrest keep me from seeing or caring for my parent?

Often, at least at first. Judges at first appearance routinely impose no-contact conditions, and Adult Protective Services may arrange alternative care. When the parent objects to the separation and has capacity, The Brancato Law Firm, P.A. moves to modify the condition, because separating a competent parent from the child who cares for him or her is frequently the outcome the parent least wants.

Can an elder abuse charge be sealed in Florida?

Abuse and aggravated abuse under section 825.102 cannot be sealed or expunged, because section 943.0584 lists them as ineligible and defines “conviction” to include a plea with adjudication withheld. Neglect under section 825.102(3) and exploitation under section 825.103 are not on that list, so a withhold of adjudication on those charges can be sealed by a defendant with no prior adjudication. That difference is one reason our attorneys push to have an abuse count refiled as neglect when the facts are a caregiver’s failure to act rather than an intentional injury.

If you or a family member is under investigation by Adult Protective Services or has been arrested for abuse, neglect, or exploitation of an elderly or disabled adult anywhere in Tampa Bay, the attorneys of The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will handle the APS interview, gather the medical and financial records that decide these cases, and take the “elderly person” and capacity arguments to the prosecutor before charges are filed. Call (813) 727-7159. The APS investigation and the State’s filing decision both move within weeks of the hotline call, and the records that prove independence and capacity are hardest to assemble after an arrest.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.