More On Banks Taking Actions In Response To Suspected Or Actual Financial Elder Abuse

David W. Tate, Esq., San Francisco and California – dave@tateattorney.com

Below I have provided a link to an ABA Banking Journal article discussing bank efforts to protect order Americans from financial abuse.

In addition to other steps, the article states “When elder fraud is suspected, banks most commonly respond by flagging the account for further monitoring (82%), reporting the incident to adult protective services (81%) and closing existing accounts and opening new ones for the customer (68%).” The article also states that ” . . . an overwhelming majority of banks – 80% – said they place holds on suspicious transactions . . . . ”

The following is a snapshot of a paragraph in the article – discussing that “about half of the banks said they have procedures in place to offer the account-holders the opportunity to consent to have their account information disclosed to a designated financial caregiver.”

I have previously written some of my views about procedures for preventing, stopping, and remedying financial (and physical) elder abuse. Placing a hold on an account is a good temporary step to safeguard and preserve the account. Reporting the incident to adult protective services or another accepted organization is another good step and is required by law in many circumstances (California, for example, has mandated reporting requirements in circumstances that are described in the applicable statutes relating to financial abuse, and also for or relating to physical and other types of abuse – I have written about and presented talks on these topics). Encouraging an account holder to designate a trusted person who the bank can call when the bank sees suspicious activities also is a good step. And, of course, training on these topics should be ongoing.

All of the above actions are good first steps. Then the really hard and time consuming part starts, and it typically must involve good family members and friends as, given the large numbers of financial elder abuse, the banks, adult protective services, the district attorney’s offices, and the police do not have the resources to pursue most situations for the long haul. An elder typically believes that the perpetrator is a good and trustworthy person or business or other entity, and I can tell you that it is amazing how persistent a perpetrator of financial elder abuse can be – in situations where a typical person would willingly exit the situation or agree to restrictions and limitations, and even repayment, it can be amazing for how long a perpetrator of financial elder abuse will persist. And also be mindful that we have only been discussing bank situations and responses, whereas the great majority of financial elder abuse will not be visible to or noticed by a bank.

Below is a link to the complete article:

Survey: Banks Ramp Up Efforts to Protect Older Americans from Financial Abuse

Best to you, Dave Tate, Esq. (San Francisco and California) – dave@tateattorney.com

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only.

I am also the Chair of the Business Law Section of the Bar Association of San Francisco.

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DoJ – Guilty Plea for Call Center Fraud of the Elderly – Partially Operated in the US

This stuff goes on all the time – probably because it can be so easy to make phone calls. The following is a link to the US Department of Justice news release about a call center operation to defraud the elderly, partially operated in the US. It’s very difficult to stop phone calls. The efforts to prevent this type of abuse must start at home with good-intentioned family and friends. Here’s the link to the DoJ news release, CLICK HERE. You can contact me if you need legal action to stop or remedy elder abuse, (415) 917-4030. Dave Tate, Esq., San Francisco and throughout northern and southern California.

DoJ - Call Center Fraud of the Elderly

Is This Undue Influence – It Could Be – You Decide

I was reading an article recently. It in part described a situation where one of Dad’s adult children said that Dad could not see his granddaughter anymore because the son was upset with Dad’s estate plan, but that Dad could see his granddaughter if he made some changes to the plan.

Undue influence is described in several different ways, including by statute and by case law. When are statements or discussions merely opinions, or influence, or persuasion, or even argument or disagreement, but not “undue” influence in nature? It’s not always easy to tell; but on other occasions it is obvious. You judge the above scenario using the below definition of undue influence. It sounds like undue influence, and quite possibly also elder abuse, if it meets the below criteria.

The following information is copied from my elder abuse presentation slides.

California Welfare & Institutions Code §15610.70 provides the following statutory definition of undue influence:

(a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following: (A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. (B) Use of affection, intimidation, or coercion. (C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.

(b) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.