FINANCIAL EXPLOITATION OF THE ELDERLY INFORMATION FOR

Report
FINANCIAL EXPLOITATION OF THE ELDERLY
MANDATORY REPORTING REQUIREMENTS FOR
BANKS & FINANCIAL SERVICE PROVIDERS
Required by State & Federal Law
World Elder Abuse Awareness Day
June 14, 2010
SALT Conference, Slidell, Louisiana
Donald D. Akers, Jr.,
Assistant District Attorney
Elderly Protective Services
16thJudicial District of Louisiana
Member:
Governor’s Office of Elderly Affairs, Taskforce on
Financial Exploitation of The Elderly
•
.
WHAT ROLE DO THESE PROFESSIONALS
HAVE IN PROTECTING THE ELDERLY FROM
FINANCIAL FRAUD AND EXPLOITATION ?
Financial institutions can play a key role in addressing elder
financial exploitation due to the nature of the client
relationship. Often, financial institutions are quick to
suspect elder financial exploitation based on personnel
familiarity with their elderly customers. The valuable role
financial institutions can play in alerting appropriate
authorities to suspected elder financial exploitation has
received increased attention at the state level; this focus is
consistent with an upward trend at the federal level…
SOURCE: US Dept. of Treasury, Financial Crimes Enforcement Network, Advisory FIN2011-A003/ Issued: February 22, 2011
WHAT IS EXPLOITATION OF THE ELDERLY?
• LA R.S. 15:1503: (EPS/APS Statute Definitions)
• (7) "Exploitation" means the illegal or improper use or management of an
aged person's or disabled adult's funds, assets, or property, … power of
attorney or guardianship for one's own profit or advantage.
•
LA R.S. 14:93.4. Exploitation of the infirmed (Criminal Law)
• (1) The intentional expenditure, diminution, or use…of the property or
assets of the infirmed, a disabled adult, or an aged person…without the
express voluntary consent…by means of fraudulent conduct, practices, or
representations.
• (2) The use of an infirmed…aged person's, or disabled adult's power of
attorney or guardianship for one's own profit or advantage by means of
fraudulent conduct, practices, or representations.
PENALTIES FOR EXPLOITATION OF THE INFIRMED
LA R.S. 14:93.4 A FELONY
 shall be fined not more than ten thousand dollars or
imprisoned, with or without hard labor, for not more
than ten years, or both (No Fine Provided)
 shall be prohibited from having access to the victim's
or any other disabled or aged person's assets or
property…from being appointed as a power of
attorney or guardian for the victim or any other
disabled or aged person…
 shall not prohibit the offender from inheriting from
the victim
LA R.S. 14:67.21 THEFT OF THE ASSETS OF AN AGED
OR DISABLED PERSON
• “Aged person" is any person 60 years or older (EPS
Jurisdiction)
• "Disabled person" is a person 18 years or older who has a
mental, physical, or developmental disability …. (APS
Jurisdiction)
• The intentional use, consumption, conversion,
management, or appropriation of funds, assets or
property...misuse of a power of attorney...or through
fraudulent scheme...without authorization for the profit,
advantage, or benefit...
OTHER CONSIDERATIONS:
• Criminal Prosecution and Convictions are the best means of
having restitution made to the victim and occur at no further
cost to the victim.
• Civil Recovery of funds and property exploited is also
available but there are statutes of limitation in these areas
also and there are no exceptions for the elderly and infirm:
• Loans have a 3 year period for suit; Promissory Notes and
other Negotiable Instruments have a 5 year period for suit;
other ‘’ personal actions have a 10 year period.
• Perhaps it is time to review an exception or extension of time
limits for this class of persons in the civil arena!
CONTENTS OF REPORT
• Reports ...shall be made to any adult protection agency or to
any local or state law enforcement agency...
• All reports shall contain the name and address of the adult,
the name and address of the person responsible for the care
of the adult, if available, and any other pertinent information.
• The adult protection agency shall have access to any financial
records necessary...without unnecessary delay...and is
exempt from the payment of fee otherwise required or
authorized by law to obtain a record...
• If the adult protection agency is unable to obtain access to a
record ...the court shall order access...
IMMUNITY AND CONFIDENTIALITY
• No cause of action shall exist against any person
or agency who in good faith provides a record or
document to the adult protection agency
• The identity of any person who in good faith
makes a report of abuse, neglect, exploitation, or
extortion shall be confidential and shall not be
released without the handwritten authorization
of the person making the report.
CONSEQUENCES OF FAILURE TO REPORT
• Further, a person who knowingly fails to
report abuse may be liable for fines and/or
imprisonment.
• It is everyone's responsibility to report abuse
or neglect of an elder.
FEDERAL FINANCIAL PRIVACY LAW
Financial Exploitation Reports are Exempt
• The Federal Right to Financial Privacy Act of 1978 does not
apply to reports made to state or local authorities.
• 31 U.S.C. sec. 5318 (g) (3) A:
Any financial institution
that...makes a disclosure pursuant to this subsection or any
other authority...shall not be liable to any person under any
law or regulation of the United States, any constitution, law,
or regulation of any State or political subdivision of any State…
• 12 U.S.C. 3403 (c)
• Nothing in this title shall preclude any financial
institution...,from notifying a Government authority that such
institution...has information which may be relevant to a
possible violation of any statute or regulation.
• Any financial institution, or officer, employee, or agent
thereof…shall not be liable to the customer under any law or
regulation of the United States or any constitution, law or
regulation of any State or political subdivision thereof, for
such disclosure of or any failure to notify the customer of such
disclosure.
The Financial Services Modernization Act (Gramm-Leach-Bliley
Act) exempts from its privacy protection and notification to
customers requirements:
Disclosure “to protect against or prevent actual or potential
fraud, unauthorized transactions, claims, or other liability.”
Disclosure “to the extent specifically permitted or required
under other provisions of law…to law enforcement
agencies…or for an investigation on a matter related to public
safety.”
Disclosure “to comply with Federal, State, or local laws, rules,
and other applicable legal requirements.”
United States Department of The Treasury
Financial Crimes Enforcement Network
Advisory FIN-2011-A003/ Issued: February 22, 2011
Subject: Advisory to Financial Institutions on Filing Suspicious Activity Reports
Regarding Elder Financial Exploitation
•
•
•
•
•
Key Areas Addressed by the Advisory Opinion
Financial institutions can play a key role
This advisory contains examples of "red flags“
Older Americans hold a high concentration of wealth
SARs continue to be a valuable avenue to report elder financial
exploitation.
Filers should continue to report all forms of elder abuse according
to institutional policies and the requirements of state and local laws
and regulations,
HOW CAN BANKERS AND FINANCIAL SERVICE
PROVIDERS HELP ?
• Train and sensitize employees about financial exploitation so that
they recognize and report it
• Designate a staff person whom employees must notify when
questionable or illegal financial transactions are occurring
• Develop a protocol for reporting suspected financial exploitation to
law enforcement or Adult Protective Services
• Train customer service specialists in interview techniques of elder
customers
• Educate customers about how to recognize the signs of exploitation
SIGNS OF FINANCIAL EXPLOITATION OF AN
ELDERLY PERSON
• A relative or caregiver with no means of support who is
suddenly interested in the elder's finances
• The elderly person's bills are not being paid
• A relative or caregiver who isolates the elder
• The elder is unaware of or unable to explain their finances
• Bank and credit card statements are sent to the relative or
caregiver
• The elder is concerned about missing money
• Suspicious signatures on checks
• A legal document, such as a will or power of attorney, is
drafted without the elder fully appreciating its implications
METHODS OF FINANCIAL EXPLOITATION
• Taking or giving the victim's money, property, or valuables
without permission
• Borrowing money and not paying it back
• Misusing ATM or credit cards
• Joint Bank Accounts where the offender's name is added to
the victim's account
• Deed or Title Transfer: Transferring property to the offender,
possibly as a result of force or intimidation
• Power of Attorney: Misusing the power of attorney by forcing
the victim to agree to it or using the power for other
unintended purposes
• Living Trusts and Wills: Having himself named manager of the
victim's trust or as a beneficiary
For Further Assistance
Contact Information:
• Donald D. Akers, Jr.
Assistant District Attorney, Elderly Protective Services
16th Judicial District of Louisiana
300 Iberia Street, Courthouse Suite 200
New Iberia, LA 70560-4583
Phone: 337-369-4420
Direct Ph: 337-365-3886
Direct Fax: 337-365-3886
• Additional Ph: 337-367-8451
Alternate Fax: 337-365-7034
email: [email protected]

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