FINRA proposed financial exploitation rule change for elders and vulnerable adults

FINRA has sent to the SEC a proposed rule change to help protect seniors and vulnerable adults from financial exploitation: “FINRA is proposing amendments that would require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer’s account. In addition, FINRA is proposing a new rule that would permit firms to place a temporary hold on a disbursement of funds or securities when there is reasonable belief of financial exploitation, and to notify the trusted contact of the temporary hold. The rule change is not effective until approved by the SEC.”

“A small number of states have enacted statutes that permit financial institutions, including broker-dealers, to place temporary holds on “disbursements” or “transactions” if financial exploitation of covered persons is suspected. In addition, the North American Securities Administrators Association (“NASAA”) created a model state act to protect vulnerable adults from financial exploitation (“NASAA model”). Due to the small number of state statutes currently in effect and the lack of a federal standard in this area, FINRA believes that the proposed rule change would aid in the creation of a uniform national standard for the benefit of members and their customers.”

The proposed rule change is quite lengthy. Of course, and assuming that the rule change is approved by the SEC, the real test is how the different FINRA members apply the rule in everyday occurrences, the policies and procedures that they put in place, and the training that they provide to their employees. You will note that FINRA acknowledges that the definitions are broad, which is typical in this area of law – see, for example, the California elder abuse statutes in the California Welfare & Institutions Code and the statutes pertaining to mental capacity and undue influence in the California Probate Code – but those are detailed discussions for other materials – I have given presentations for attorneys, fiduciaries and other professionals on these topics including elder abuse and elder protection, probate court procedures, and fiduciary standards of care.

Below are a couple of the pertinent rule change provisions.

“FINRA believes that “specified adults” may be particularly susceptible to financial exploitation. Proposed Rule 2165 would define “specified adult” as: (A) a natural person age 65 and older; or (B) a natural person age 18 and older who the member reasonably believes has a mental or physical impairment that renders the individual unable to protect his or her own interests. Supplementary Material to proposed Rule 2165 would provide that a member’s reasonable belief that a natural person age 18 and older has a mental or physical impairment that renders the individual unable to protect his or her own interests may be based on the facts and circumstances observed in the member’s business relationship with the person. The proposed rule change would define the term “account” to mean any account of a member for which a specified adult has the authority to transact business.”

“Because financial abuse may take many forms, FINRA has proposed a broad definition of “financial exploitation.” Specifically, financial exploitation would mean: (A) the wrongful or unauthorized taking, withholding, appropriation, or use of a specified adult’s funds or securities; or (B) any act or omission by a person, including through the use of a power of attorney, guardianship, or any other authority, regarding a specified adult, to: (i) obtain control, through deception, intimidation or undue influence, over the specified adult’s money, assets or property; or (ii) convert the specified adult’s money, assets or property.”

In addition to (1) initially attempting to obtain from the client information about a trusted person who the member can contact in possible situations of exploitation, and (2) attempting to contact that trusted person when appropriate, “The proposed rule change would permit a member to place a temporary hold on a disbursement of funds or securities from the account of a specified adult if the member reasonably believes that financial exploitation of the specified adult has occurred, is occurring, has been attempted or will be attempted. A temporary hold pursuant to proposed Rule 2165 may be placed on a particular suspicious disbursement(s) but not on other, non-suspicious disbursements. The proposed rule change would not apply to transactions in securities.” I note that although the proposed rule change would not apply to “transactions in securities,” it would nevertheless apply to a distribution of the post-sale proceeds from an account.

You should also note that the rule change does not require the member to obtain trusted person contact information from the client (it only requires the member to try to obtain that information), nor does the rule change require the member to contact the trusted member in possible situations of exploitation, nor does the rule change require the member to put a temporary hold on the account or transactions in possible situations of exploitation.

I am sure that the proposed rule change goes only as far as it does because members obviously do not want to be liable for alleged failure to act. But FINRA members in California also should already be up-to-speed on the mandated reporter of suspected financial elder abuse provisions at California Welfare and Institutions Code section 15630.1, which in part provide – “(a) As used in this section, “mandated reporter of suspected financial abuse of an elder or dependent adult” means all officers and employees of financial institutions. (b) As used in this section, the term “financial institution” means any of the following: (1) A depository institution, as defined in Section 3(c) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(c)). (2) An institution-affiliated party, as defined in Section 3(u) of the Federal Deposit Insurance Act (12 U.S.C. Sec. 1813(u)). (3) A federal credit union or state credit union, as defined in Section 101 of the Federal Credit Union Act (12 U.S.C. Sec. 1752), including, but not limited to, an institution-affiliated party of a credit union, as defined in Section 206(r) of the Federal Credit Union Act (12 U.S.C. Sec. 1786(r)).”

Additionally, there are separate California mandated reporter of suspected elder abuse requirements at California Welfare and Institutions Code section 15630 which provide that “(a) Any person who has assumed full or intermittent
responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency, is a mandated reporter.”

Some of the proposed rule change provides for pretty interesting reading. See, for example, footnote 14 which provides a possible example: “A customer’s request to change his or her trusted contact person may be a possible red flag of financial exploitation. For example, a senior customer instructing his registered representative to change his trusted contact person from an immediate family member to a previously unknown third party may be a red flag of financial exploitation.”

And of course I will be providing further analysis and updates on this topic. The proposed FINRA rule change has been a long time coming.

Dave Tate, Esq., San Francisco and California

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Is Your Aging Client Being Seduced Away By Another “Advisor”? – From Aging Investor

From Aging Investor, for the discussion click on the following link, CLICK HERE.

An interesting discussion, on a topic that needs more coverage relative to investment advisors and persuasion or undue influence in general. Mental capacity, mental understanding, intent, persuasion and undue influence are common issues and themes in elder and dependent adult abuse, trust, estate and real property litigation. In my experience, it is very difficult to get a business to reverse a transaction or a sale after the fact on an argument that the elder did not and could not understand the transaction. All situations are different of course, but most likely you will have to file a lawsuit before the entity will really take you seriously. It can help if there are prior medical/psychological doctor or other professional evaluations or comments about lack of mental capacity or the inability to engage in transactions or to continue as trustee, or a prior established conservatorship in appropriate cases.

Dave Tate, Esq. (San Francisco Bay Area and California), http://californiaestatetrust.com

Probate Court Judges Need More Judiciary Education From The California Judicial Council

I can say this – absolutely. California judges need more, and more detailed, education about probate, wills, trusts, decedent’s intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult abuse.

I’m not saying that all judges need more education – some are quite experienced in these areas – but over the past several years I have been running into situations where judges who primarily handle civil or criminal matters are also assigned probate related cases. And this can happen in any court for trial purposes because even in courts that have dedicated probate departments, the trial of a probate case that will take longer than a day will probably be assigned to the master calendar for trial and judicial assignment. I’m not faulting a judge for not having experience in these areas – I am faulting the system and the judiciary education system.

While, yes, it can be argued that it is then for the attorneys to educate that judge, if I’m a judge and one attorney is saying that the law and the required outcome are “X” and another attorney is saying that the law and the outcome are “Y,” as the judge I don’t know who to believe. And add to that the fact that probate, wills, trusts, intent, mental capacity, undue influence, fraud, conservatorships and elder and dependent adult cases and evidence are detailed and complicated, including the law in those areas, which is also regularly changing, and you have a recipe for erroneous decisions, and also opportunities for less than honest counsel to exceed the bounds of advocacy and improperly twist or spin the law and the evidence.

These are important cases. They are the probate court version of family law – important issues, very emotional, and people related and impacting.

Dave Tate, Esq. (San Francisco and California) http://californiaestatetrust.com and http://directorofficernews.com

 

 

More News On Elder Abuse, And What People Are Doing – But You Cannot Treat Or Remedy It Without Private Attorneys

I am writing about elder and dependent adult abuse more, and more often. Elder and dependent adult abuse already was and has been an epidemic. The topic, however, is in the news more often, and governmental units are increasing their discussions about elder and dependent adult abuse, but those discussions cannot treat or remedy the abuse – there simply are not sufficient time and experienced people resources to treat and remedy the problem. I encourage the increased efforts, but people need to understand that those resources still are entirely insufficient. It takes a lot of time, and expertise to prosecute these cases in court. A couple of cases can almost entirely occupy an attorney’s time. Long ago the California Legislature enacted the Elder Abuse and Dependent Adult Civil Protection Act to encourage private attorneys to take on these cases. Well . . . private attorneys cannot take on these cases if they aren’t contacted to do so, and in most instances governmental entities work in silos, and also will not refer to private attorneys. The ridiculousness of this situation is extremely frustrating.

I am attaching links to two new elder abuse articles. One of the articles HERE is by Forbes, discussing banks and what they are doing about elder abuse. Although identifying elder abuse and freezing an account might be helpful in certain cases, bank investigations and referral to adult protective services don’t provide the resources to prosecute and remedy the abuse. The other article HERE discusses a Dallas County effort to prosecute and remedy the abuse – I cannot determine from the article whether private attorneys are utilized – hopefully they are and that would be a step forward – but it is clear that without private attorneys the necessary resources absolutely do not exist and people should not talk as if they are truly prosecuting and remedying the abuse..

Dave Tate, Esq. (San Mateo County, the Bay Area, and California)

 

 

Elder Abusers Use The Legal System Also

You might be surprised that elder abusers aren’t necessarily worried or scared of the legal system.

In my experience, most abusers as a personality trait believe that they can get away with the abuse because they believe that other people are stupid, or that they simply won’t be caught, or that other people won’t make the effort or don’t have the time and resources to stop them.

You might also be surprised to know that elder abusers use or try to use the legal system to help them commit the abuse. Here are a few of the ways that I have seen.

-The abuser calls the police and complains that other people, the good people, are abusing, or mistreating, stealing from, or unduly influencing the elder. The abuser tries to turn the tables on the good people so that the abuser can then have the elder victim alone.

-Similarly, the abuser calls adult protective services and complains that the good people are mistreating or stealing from the elder.

-Another example, the abuser obtains an attorney who will draft a will, or trust, or power of attorney for the elder naming the abuser, and the attorney does not understand or sufficiently care about his or her ethical and legal obligations to the elder who is the attorney’s client.

-Or the abuser files a contest of the elder’s will or trust documents.

-Except in situations of immediate theft, typically the abuser works at this for a continuous period of time taking small steps forward, influencing the elder against the good people and eventually getting the assets, documents or evidence that help the abuser.

And in another example, the abuser promises the elder victim something that the elder wants, something that will make the elder happy, such as . . . “if you sign the power of attorney I will be able to take you home,” even when it’s clear that medically or for daily care the elder should stay in the nursing home.

The list goes on. These are cases that are difficult and time consuming, and can be expensive to prosecute – it takes good people to take action.

* * * * *

 

Using Risk Management – Citations Against Nursing Homes – Criteria for Determining the Amount of the Civil Penalty – California Health and Safety Code Sections 1424 and 1424.5

California in part uses risk management principles to determine the amount of civil penalty to levy against a nursing home for a care violation. I would prefer, however, that in addition to the Section 1424 facts listed below, that the facts considered as criteria for determining the amount or increased amount of penalty also specifically include (1) the nursing home’s care policies, procedures and practices in place before the violation, and whether or not the nursing home was following those policies, procedures and practices, and (2) the nursing home’s timely payment of the penalty.

California Health and Safety Code Section 1424 in part provides that citations issued against nursing homes shall be classified according to the nature of the violation and shall indicate the classification on the face of the citation.

(a) In determining the amount of the civil penalty, all relevant facts shall be considered, including, but not limited to, the following:

(1) The probability and severity of the risk that the violation presents to the patient’s or resident’s mental and physical condition (i.e., traditional risk management, the likelihood of the occurrence and the possible severity of an injury that could result from the breach or continuing breach).

(2) The patient’s or resident’s medical condition.

(3) The patient’s or resident’s mental condition and his or her history of mental disability or disorder.

(4) The good faith efforts exercised by the facility to prevent the violation from occurring.

(5) The licensee’s history of compliance with regulations (this criteria should get little or no weight – tell this criteria to a severely injured or dead elder or dependent adult and his or her family – the fact that a facility has a history of compliance, or that noncompliance has not been noticed in the past really isn’t relevant to the injured or deceased elder or dependent adult and isn’t a criteria in traditional tort law, so why is it relevant at all for the purpose of citation penalties levied?).

(b) Relevant facts considered by the department in determining the amount of the civil penalty shall be documented by the department on an attachment to the citation and available in the public record.

This requirement shall not preclude the department or a facility from introducing facts not listed on the citation to support or challenge the amount of the civil penalty in any proceeding set forth in section 1428.

California Attorney General Office Information On Elder and Nursing Home Abuse

The following information is provided by the California Attorney General Office, see, e.g., http://oag.ca.gov/bmfea/elder. The numbers all point to staggering statistics, and the following information is only for reported cases – as I have previously written, the information available indicates that cases of abuse very significantly outnumber the reported cases, perhaps by a 24 to 1 ratio.

Elder Abuse

      • The United States Census Bureau projected in 2000 that California’s elderly population will have doubled by 2025 to 6.4 million – a larger growth rate than any other state
      • The California Department of Finance projects that the number of California residents aged 65 and older–those who are most likely to need nursing homes or other long term care–will nearly double between 2010 and 2030.
      • About 110,000 Californians live in about 1,300 licensed nursing homes and about 150,000 live in about 7,500 licensed residential care facilities for the elderly. Another 150,000 or more Californians are estimated to live in unlicensed assisted living facilities that may or may not be able to care for them properly.
      • Many residents of both licensed and unlicensed facilities suffer from dementia and may be given dangerous antipsychotic drugs to sedate or restrain them improperly
      • In 2009 the California Senate Office of Oversight and Outcomes reported that 13% of all complaints to the California Office of the State Long Term Care Ombudsman involved abuse, gross neglect, or exploitation, over twice the national rate of 5%
    • The California State Department of Finance claims that the number of California residents age 85 and older – those who are most likely to need nursing homes — will nearly double by the year 2030, when the bulk of baby boomers will come of age.
    • In 2005, the Office of Statewide Health Planning and Development reported that one-fifth of California’s nursing facilities did not meet state-mandated requirements for staffing levels.
    • In 2006, Centers for Medicare and Medicaid Services reported that twice as many of California’s 115,000 plus residents are placed in physical restraints as are nationally.
    • From 2001 to 2005, the California Department of Health Care Services, found that two-thirds of all reported deficiencies caused or could have caused significant harm to one of more residents in nursing homes. More than half of all complaints in nursing homes are related to poor quality of care. Eighteen percent of substantiated complaints were related to mistreatment or abuse.

Together, these staggering statistics and projections illustrate the urgent need to address and remedy the poor quality of care in many of California’s skilled nursing facilities.

Facilities Enforcement Team

The Facilities Enforcement Team investigates and prosecutes corporate entities, such as skilled nursing homes, hospitals, and residential care facilities, for adopting policies or promoting practices that lead to neglect and/or poor quality of care. Institutional neglect or substandard care includes:

  • Failure to provide medical care for physical and mental health needs
  • Failure to attend to hygiene concerns
  • Failure to provide adequate staffing
  • Failure to prevent malnutrition and dehydration
  • Falsification of patient chartsThe primary goal of the Operation Guardians program is to help protect and improve the quality of care for California’s elder and dependent adult residents residing in California’s approximately 1300 skilled nursing facilities. The Operation Guardians team identifies instances of abuse or neglect for further investigation and possible criminal or civil prosecution by the Bureau of Medi-Cal Fraud and Elder Abuse.
  • Operation Guardians
Fraud: 10/11 11/12 12/13 13/14 14/15
Criminal Filings 75 60 63 59 94
Convictions 58 46 35 32 56
Acquittals 3 1 0 0 2
Criminal Restitution $504,403 $279,228 $542,962 $180,017 $378,765
Civil Monetary Recoveries $6,145 $0 $0 $0 $0