What is Your Role in Elder Financial Exploitation? Attorney Maren Beermann, Elder Financial Empowerment Project Coalition of Wisconsin Aging Groups Elder Financial Exploitation Basics “Financial Exploitation” means the misuse of an elder (60+) person’s property or financial resources Largest category of abuse reports in Wisconsin (1,022 in 2007), after selfneglect University of Chicago study: 3.5% of seniors over the age of 60 are exploited. 1 million seniors in Wisconsin = 35,000 exploited each year Different Strengths, Common Interests Banks can make reports and provide financial records Social Workers can provide services and develop a relationship with a witness Law Enforcement can accompany elder abuse workers and in appropriate cases pass it on to the district attorney Categories of Abusers Family – namely adult children and grandchildren Professional criminals who target elderly 20% daughters, 24% sons, 15% other relatives Examples: home repair scams and telemarketers Hired, professional or voluntary caregivers Friends or others in position of trust Why Your Position Makes You the Front Line: Financial institutions – can spot suspicious activity or suspicious persons Law enforcement – as first responders in victim’s homes, they may detect warning signs (regardless of the original reason they were called) Elder adult at risk workers can visit elders to check for abuse, neglect or financial exploitation Signs of Financial Exploitation Money management changes in account balances, spending habits unusual account activity missed bills, disconnected utilities, overdue notices People around elder with unusual behavior, level of care, concern, or knowledge about the elder taking actions that isolate the elder Legal documents, including real estate transfers transfers made that the elder does not understand newly executed documents recent or repeated revocations or codicils forged signatures altered documents pre-signed checks or withdrawal slips Elder’s environment missing property other forms of abuse present: physical, emotional, neglect (hygiene) Elder’s behavior fear, shame, humiliation hesitation to talk or seek help timid or flat affect rapid deterioration in health condition untreated medical conditions What is the Role of Financial Institution Personnel? According to a report prepared for the American Bar Association: Financial Institutions have the potential to be the “first line of defense” against financial abuse, by identifying the abuse at its outset, before the elder’s assets have been dissipated. No institution is in a better position to observe and report suspicious behavior. Advisor Role: Financial Institutions Power of Attorney Account Payable-on-Death Two Signatures for cash withdrawals No joint accounts for incapacity planning! Reporter Role Under state law any person may report financial exploitation to: The county elder abuse agency Kewaunee County: 920-388-0626 http://dhs.wisconsin.gov/aging/elderabuse/ The long term care ombudsman 800-815-0015 http://dhs.wisconsin.gov/aging/BOALTC/LTC OMBUD.HTM Any other state official DQA 608-266-8481 http://dhs.wisconsin.gov/rl_dsl/bqa.htm State Law Immunity . State law immunity: No person may be held civilly or criminally liable or be found guilty of unprofessional conduct for reporting in good faith under this subsection. Wis. Stats. § 46.90(4) (c) Wis. Act 388 adds a new provision: “46.90(5)(b)6. A review of any financial records of the elder adult at risk that are maintained by a financial institution. The records shall be released without informed consent in either of the following circumstances: To an elder−adult−at−risk agency or other investigative agency under this section. The financial record holder may release financial record information by initiating contact with the elderadult-at-risk agency or other investigative agency without first receiving a request for release of the information from the elder-adult-at-risk agency or other investigative agency. ” Under a lawful order of a court of record. Gramm-Leach-Bliley Act Prohibits the release of “non-public personal information” of customers, EXCEPT “To protect against or prevent actual or potential fraud, unauthorized transactions, claims and other liability” To “comply with a properly authorized civil, criminal, or regulatory investigation” Senators Kohl and Feingold wrote to federal regulators requesting guidance. Alan Greenspan and all the federal regulators responded on June 3, 2005. Financial institutions are allowed to voluntarily report elder financial abuse to the county elder abuse agency, if they have a memorandum of understanding. Financial institutions are allowed to voluntarily respond an elder abuse investigation without waiting for a subpoena or any other paperwork Next Steps Training for bank personnel Signing memorandum of understanding between bank and elder abuse agency Review of internal bank procedures Who reports? What information is gathered? Prosecution Overview 1. Intent 2. Evidence 3. Specific crimes Intent Inferred: Acts and statements No presumptions Advantage or injury can be sufficient Capacity to Consent POA is not a license to steal. Fraud Undue influence Guardianship If the individual is under a guardianship, likely does not have legal capacity to consent to financial transactions Evidence Judge is gatekeeper Every witness competent, § 906.01 Personal knowledge, § 906.02 Videotaped testimony Copies must be reliable (originals), § 910.02 But they make bad witnesses, right? WRONG! Juries love elderly witnesses Older adults make GOOD witnesses in many cases (keep good records, etc.) Types of Crimes - Thefts Theft by bailee: Wis. Stat. § 943.20(1)(b) Theft by fraud: Wis. Stat. § 943.20(1)(d) Converting employer’s money; failure to deliver is a prima facie case Obtaining property by deception Misappropriation of Personal Identifying Information or Personal Identification Documents: Wis. Stat. §943.201 Using another’s identifying information (Identity Theft) Types of Crimes - Documents Forgery: Wis. Stat. § 943.38(1) Uttering: Wis. Stat. § 942.38(2) altering a writing knowingly passing a forged writing Fraudulent Writings: Wis. Stat. § 943.39 obtaining a signature by means of deceit Prosecution or No Prosecution ORGANIZE. Don’t hand over 200 pages of financial statements and say “here’s your proof!” Should the DA not take your case, there is always the option of a civil case. Financial Institutions’ Witness Role in a Civil Case Helen signed a power of attorney to her son John. When John’s business got into trouble, he took $230,000+ of his mom’s money to save his business. Self-dealing: Participation in a transaction that benefits oneself instead of another who is owed a fiduciary duty. Helen Losee v. Marine Bank http://www.wisbar.org/res/capp/2005p/2 004ap001938.pdf Emma W. got back her money thanks to an alert banker: Harriet Dzimiela, Emma's personal banker, testified that Emma told her it was her intent that her sons not have access to certain funds until her death. In the Matter of the Guardianship of Emma W. http://www.wisbar.org/res/capp/2004/04 -0361.htm Financial Exploitation Resources Elder Abuse Helpline, Green County (Department of Human Services): 608-328-9393 Division of Quality Assurance, Office of Caregiver Quality: (608) 266-8481 Contact the Elder Financial Empowerment Project Maren Beermann 800-488-2596 Ext. 315 [email protected] www.cwag.org This presentation was supported, in part, by a grant (Number 90AM3183/01) from the Administration on Aging, U.S. Department of Health and Human Services (DHHS). Grantees carrying out projects under government sponsorship are encouraged to express freely their findings and conclusions. Therefore, points of view or opinions of the author do not necessarily represent official Administration on Aging or DHHS policy.