Elder Financial Exploitation

Unfortunately, I have personally encountered elder financial exploitation as a court-appointed probate guardian ad litem. In my private practice, I have had many occasions to see the devasting effects and aftermath of elder financial exploitation on individuals, families and our society. A 2017 joint publication of three federal entities -- the Consumer Financial Protection Bureau, the U.S. Department of Treasury and the Financial Crimes Enforcement Network (FinCEN), asserts that elder financial exploitation is the most common form of elder abuse in the United States. The prevalence of financial exploitation will only continue to rise as the aging online presence increases and dysfunctional families continue to exist. As practitioners, not only should we be concerned about financial exploitation occurring, but we also need to proactively address it by using a client-centered approach in our practices and push for systemic changes that provide practical tools to educate, advocate and address elder financial exploitation.

One such example of a systemic change to combat Elder Abuse is the Financial Exploitation Prevention Act spearheaded by the Michigan Department of Attorney General Elder Abuse Taskforce. The Financial Exploitation Prevention Act ensures mandated reporting for financial institutions on suspected fraud or exploitation. Most notably, the Act requires financial institutions to develop employee awareness training and report to law enforcement/adult protective services for further law enforcement investigation.

While the Act addresses elder financial exploitation at a macro level, probate practitioners should be aware of the types of exploiters and the specific tools available to address financial exploitation at the practice level. It is my goal to equip and educate fellow practitioner with resources and tools. While this article refers to law enforcement resources, the tools may be adapted for use in probate practice.

CLIENT-CENTERED APPROACH

First and foremost, practitioners should familiarize themselves with client-centered and trauma-informed practices and approaches, so they are better equipped to engage the elderly client to make informed decisions regarding their financial exploitation recovery plan. The client-centered approach first requires the practitioner evaluate their internal beliefs, stereotypes and biases regarding the elderly and their capabilities. Once the practitioner has identified their personal biases and the resulting behaviors, the next step is to carefully consider adapting their communication style to accommodate the client’s unique strengths, specific needs and goals.

Practitioners should strive to use a trauma-informed approach while talking with the client about his or her goals, potential causes of actions, and non-court solutions. Be careful to consider that many victims may be filled with embarrassment that would prevent them from disclosing the abuse to a trusted a family member. The elder victim may be hesitant to report financial exploitation to adult protective services, law enforcement or family members because of the real probability of losing their autonomy and financial independence.

Trauma-informed principles focus on recognizing the individual strengths and experiences to enhance their ability to make informed decisions and communicate their legal objectives. It requires practitioners to pay particular attention to their verbal and non-verbal communication styles -- focusing on using reflective listening skills, avoiding external distraction, and maintaining eye contact with the elder. For further reading on trauma-informed practices, see SAMHAS’s Concepts of Trauma and Guidance for a Trauma-Informed Approach (Department of Health and Human Services, 2014.)

WHO ARE THE EXPLOITERS?

People who exploit elders generally fall into one of two categories -- strangers and trusted persons. It is common for both categories to use relationships to gain and maintain a trust that further isolates the elder. It is important that practitioners tailor the exploitation recovery plan to address the specific tactics and varying tools the stranger or trusted person uses.

Typically, strangers tend to use landlines, the internet and cell phones to access social media apps like Facebook, WhatsApp and text messaging. Strangers look for particular flags of vulnerability, such as a display of confusion, recent illness or signs of loneliness before implementing scams. The scammer is looking for someone willing to give just enough time to make the pitch. They are looking for the person who won’t immediately hang up the phone, throw away the doorknob home improvement flyer or delete the fraudulent email. Once the door is open, the scammer uses techniques such as agenda-setting, limiting choices and controlling the flow of information to victim. The scammer then quickly moves create a platform of trust to gain access to their personal and financial information.

A common approach to decrease the risk of stranger financial exploitation is to increase community/family engagement to prevent social isolation. Another approach is scam education and awareness which provides an alternative response to financial exploitation. One of the best ways to prevent stranger fraud is to have a plan to terminate a potentially fraudulent interaction – A Refusal Plan Script. The script could be as simple as “no thank you, please take me off your call list.” or “this is not a good time. Goodbye.” It is important that the elder tailor the refusal script to fit their own style and approach so they will be more likely to remember and use it. I suggest my clients keep a written copy of their refusal script near their house phone and their cellphone

Trusted persons included caretakers, the new friend at the senior center or house of worship, cultural and faith leaders and relatives. Approximately 85.5% of elder financial abuse perpetrators are family members. They seize upon opportunities to develop and maintain relationships so that they may forge checks, use credit cards, pilfer bank accounts, transfer assets and generally decimate the elders’ financial safety nets. Commonly, the trusted persons justify the exploitation because they believe “it is their inheritance” or “they deserve it for taking care of the elder”.

A common tool family members or trusted person use to exploit an elder is acting as an attorney-in-fact under a power of an attorney. It is important to note that EPIC (Estates and Protected Individuals Code) defines an attorney-in-fact in MCL 700.1103 (a) as an agent rather than specifically categorizing it as a fiduciary. However, MCL 700.5501(3)(a) (g), Saari v Susser (In re Estate of Susser), 254 Mich App 232,657 NW2d 147 (2002), and common-law agency fiduciary principles provides support for holding agents responsible when they breach a fiduciary duty by failing to properly carry out their duties to the principal through the filing of conservatorship or protective order. The court provides the needed oversight through timeline requirements, notice and service requirements for interested parties. It has the means to remedy exploitation by ordering an accounting, reviewing accounts and receipts, granting a surcharge petition and ultimately provide ongoing protection from financial exploitation.

Elder Financial Exploitation continues to be a societal problem. As practitioner we are called to proactively address it whether the exploiter is a stranger or a trusted person. The best way to combat it is to make a commitment to stop elder financial exploitation in its tracks through education, awareness, and equipping our practices with tools to fight financial exploitation. Below is a list of resources that may be helpful as you join me in my fight against elder financial exploitation.

HELPFUL RESOURCES

AARP’s Podcast: The Perfect Scam Podcast shares financial exploitation, victims’ personal stories and provides insight on how scammers work by sharing current trends, prevention tips and recovery resources.

AARP’s Fraud Watch Network Helpline (877-908-3360) is a free resource for AARP members and nonmembers. The Helpline provides trained fraud specialists and volunteers fielding thousands of calls each month. It provides judgement free guidance you can trust, tips on how to spot a scam, concrete steps to avoid fraud and actions to take if you have experienced fraud. Also provided is emotional support from peers who have experienced fraud, guidance for families concerned that a loved one is being targeted by a scammer and referrals to law enforcement and other agencies that investigate fraud.

FTCIdentityTheft.gov (https://www.identitytheft.gov/steps) is the federal government’s one-stop resource for identity theft victims. The site provides streamlined checklists and sample letters to guide you through the identity theft recovery process.

Consumer Financial Protection Bureau (https://www.consumerfinance.gov) provides a complaint process to individuals who experience issues with credit reporting agencies, credit repair services, credit card/prepaid card, checking or savings account, money transfer or virtual currency. Individuals can submit a complaint after they have reached out to the company directly and continue to have an unsatisfactory resolution. It also offers a consumer complaint database. This database is a collection of complaints about consumer financial products and services that were sent to companies for response. So far this year, in Michigan the complaint with the highest volume has been incorrect information on a credit reporting.

Internet Crime Complaint Center (IC3.gov) Nearly all crime that once was committed in person, by mail, or over the telephone, can be committed over the internet. Some examples of internet crimes are online extortion, international money laundering, identity theft, phishing and romance scams. The mission of the Internet Crime Complaint Center is to provide the public with a reliable and convenient reporting mechanism to submit information to the Federal Bureau of Investigation concerning suspected internet-facilitated criminal activity. It also helps to develop effective alliances with law enforcement and industry partners. Information is analyzed and disseminated for investigative and intelligence purposes to law enforcement and for public awareness. However, IC3 does not release information about specific complaints and/or the resolution of those complaints.

Successful Aging through Financial Empowerment (https://iog.wayne.edu/outreach/success-after-financial-exploitation--safe)was created by Dr. Peter Lichtenberg, PhD, director of the Institute of Gerontology at Wayne State University. He is one of the country's foremost researchers in safeguarding seniors from financial exploitation. The Caregiver Empowerment Program offers free one-on-one financial coaching for seniors and their family or friend caregivers who have been a victim of scam or identity theft.

The Scam Prevention/ Identity Theft Recovery services includes contacting credit reporting agencies, filing police reports, closing compromised accounts, placing fraud alerts on credit report and registering consumer complaints. SAFE will

· Help older adults recover financially and emotionally after being victimized by financial scams or identity theft.

· Educate older adults and the people who care for them about scamming and identity theft techniques, identification, protection and reporting.

· Strengthen financial literacy through educational, interactive workshops.

Elder Abuse Guide for Law Enforcement (EAGLE) (https://eagle.usc.edu/) is a national web module designed to support investigators in identifying, intervening and resolving cases of elder abuse. Some examples of resources are Elder Abuse Evidence Collection Checklist and Elder Abuse First Responder Checklist. Although the checklists are geared toward law enforcement use, they are easily adapted for civil discovery purposes.

Subpoena contacts data base: (www.search.org/resources/isp-list) The ISP List is a database of internet service and other online content providers that will help you obtain discovery to support your case. For each Internet Service Provider listed, you’ll find the legal contact information and instructions needed to serve subpoenas and court orders.

Senior Abuse Financial Tracking and Accounting Guide (https://www.justice.gov/elderjustice/safta-senior-abuse-financial-tracking-and-accounting-tool-toolkit) (https://www.theiacp.org/elder-abuse) Senior Abuse Financial Tracking and Accounting Tool was developed to provide law enforcement with a simplified tool for investigating suspicious financial patterns and prosecuting cases of elder financial exploitation. The toolkit includes the SAFTA tool (an Excel macro-enabled worksheet), a training guide and subpoena template.