Docstoc

FINANCIAL EXPLOITATION OF THE ELDERLY INFORMATION FOR

Document Sample
FINANCIAL EXPLOITATION OF THE ELDERLY INFORMATION FOR Powered By Docstoc
					        STATE & FEDERAL LAW RE:

FINANCIAL EXPLOITATION OF THE ELDERLY

       MANDATORY REPORTING BY

  BANKS & FINANCIAL SERVICE PROVIDERS


    WORLD ELDER ABUSE AWARENESS DAY 2012
              June 11, Slidell, LA
               June 13, Acadiana

                      Donald Akers, Jr.
               Assistant District Attorney
            16th Judicial District of Louisiana
                     PROTECTING THE ELDERLY
                   FROM FINANCIAL EXPLOITATION
    THE ROLE OF BANKS & FINANCIAL SERVICES
 Play a key role due to the nature of their customer
  relationship.

 Because of personal familiarity with customers,
  they are quick to suspect elder financial and alert
  authorities

 Reporting financial exploitation has had increased
  attention at the state level, a focus consistent with
  an upward trend at the federal level…

SOURCE: US Dept. of Treasury, Financial Crimes Enforcement Network, Advisory FIN-2011-A003/
   Issued: February 22, 2011
           MANDATORY REPORTING !
• 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...

                  WHAT ARE WE REPORTING?
            LOUISIANA LAW:
   MANDATORY REPORTS REQUIRED FOR ALL
La. R.S. 15:1504 MANDATORY REPORTS AND IMMUNITY

• ANY PERSON...having cause to believe that an adult's
  physical or mental health or welfare has been or may be
  further adversely affected by abuse, neglect, or exploitation
  SHALL REPORT IN ACCORDANCE WITH R.S. 15:1505.

• ...any person who in good faith makes a report, cooperates
  in an investigation by an adult protective agency, or
  participates in judicial proceedings authorized under the
  provisions of this Chapter...shall have immunity from civil
  or criminal liability…
     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 $10,000 or imprisoned, with
  or without hard labor, for not more than 10 years, or both

 shall be prohibited from access to any disabled or aged
  person's assets or property…

 Shall be prohibited from having a power of attorney or
  being guardian for any 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… management or appropriation
  of funds, assets or property...misuse of a power of
  attorney...or through fraudulent scheme…
PENALTIES FOR THEFT OF ASSETS OF ELDERLY
             LA R.S. 14:67.21
  Value of $300 or less, MAY be imprisoned up to 6 months
   in prison and up to $500 (Misdemeanor)

  Value of $300+ to $500, MAY be imprisoned up to 2 years
   in prison, with or without hard labor and up to $2000 fine
   (Felony)

  Value of $500+, MAY be imprisoned up to 3 years in
   prison, with or without hard labor and up to $3000 fine
   (Felony)

  2nd conviction, SHALL be imprisoned, with or without
   hard labor, up to 2 years and up to two thousand dollars
   (Felony)

  Offender shall make full restitution to the victim
                OTHER CONSIDERATIONS:
            RECOVERY OF FUNDS AND RESTITUTION ISSUES
                     TIME IS OF THE ESSENCE !
                ‘’When they’re gone, they’re gone!! ’’

   Criminal Prosecution and Convictions
   are the best means of having restitution made to the victim and
   with no legal fees or costs

   Civil Recovery and Judgments (‘’Its a Civil Matter ’’)
   a method of recovery and restitution available but statutes of
   limitation often bar suit and there are no exceptions or extensions
   for the elderly and infirm

• Perhaps it is time to review an exception or extension of time limits
  for this class of persons in the civil law!
 Statue of Limitations for Criminal Prosecution

• Louisiana Code of Criminal Procedure Article 572

   • MISDEMEANOR:
   – Theft of Assets of Aged/Disabled valued < $300.00
      2 years from commission of offense


   • FELONY:
   – Theft of Assets of Aged/Disabled valued > $300
   – Exploitation of the Infirmed

      4 years from commission of offense
         STATUTE ADDED 2010
• LA CODE OF CRIMINAL PROCEDURE ARTICLE 573.1
  RUNNING OF TIME LIMITATIONS; EXCEPTION; EXPLOITATION
  OF THE INFIRMED

  The time limitations established by Article 572 shall
  not commence to run as to the crime of exploitation
  of the infirmed (R.S. 14:93.4) until the crime is
  discovered by a competent victim, or in the case of
  an incompetent victim, by a        competent third
  person.

  Acts 2010, No. 317, §1.
    Why Was The Statute Added ?
(1) La. R.S. 14:93.4 is designed to protect persons who are most
    often unable to know that they are being exploited or fear
    loss of independence or institutional care if they report the
    exploitation.

(2) The relationship of many perpetrators to the victim is such
   that trust is misplaced or the perpetrator is able to isolate
   the victim and financial resources from access by others.

(3) Exploitation is often discovered long after the 4 year
   prosecution period has passed such as during an examination
   of records for a “long term care Medicaid” application’s
   “look back period of 5 years”; or when a victim has died and
   succession proceedings provide access to financial records.
       IMMUNITY, CONFIDENTIALITY and
     CONSEQUENCES OF FAILURE TO REPORT

• 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.

• a person who knowingly fails to report abuse may be
  liable for fines and/or imprisonment.
  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…
  THE RIGHT TO FINANCIAL PRIVACY ACT
  12 U.S.C. 3403 (c) (Federal)

• 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,
        Louisiana Bank Disclosure Law
          Linked to the Federal Law
    The Louisiana Banking Law, La. R.S. 6:333, provides:

• F. The following disclosures by a bank or any affiliate are
  hereby specifically authorized and,…nothing in this
  Section shall prohibit, restrict, or otherwise apply to:

• (11) The disclosure by a bank …of financial records …in
  accordance with the provisions of 12 U.S.C. 3401 et seq. or
  15 U.S.C. 6801 et seq.

• (12) The disclosure by a bank… of financial records …in
  accordance with the provisions of Title 31 U.S.C.
      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
• 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
  fully understanding by the elder
     METHODS OF FINANCIAL EXPLOITATION
• Taking or giving money or assets without permission or by
  force or intimidation

• Borrowing money and not paying it back

• Misusing ATM or credit cards

• Joint Bank Accounts where the offender's name is added to the
  an account

• Misusing the power of attorney or forcing the victim to agree to
  unintended purposes

• Living Trusts and Wills: becoming the manager, trustee or
  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: dakersjr@cox.net

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:4
posted:1/30/2013
language:Unknown
pages:22