What is Your Role in Elder Financial Exploitation? Attorney Maren Beermann,

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.