suntrust bank financial exploitation _________________________ recognition, prevention, responses...

SUNTRUST BANK

FINANCIAL EXPLOITATION

_________________________

RECOGNITION, PREVENTION, RESPONSES AND CONSEQUENCES

2SUNTRUST BANK

Material Preparation Melissa Lader Barnhardt, J.D., LL.M

Terry Abrams Berger, Esq.

Dr. Jean Sherman

Coalition to Prevent Abuse of Vulnerable Adults

of Miami-Dade and Monroe Counties

(CPAVA)Presentation By:

Melissa Lader Barnhardt, J.D., LL.MFirst Vice President & Trust Advisor

[email protected]

3SUNTRUST BANK

IT IS TIME TO OPEN OUR EYES AND OUR MOUTHS_________________________________________________________

EXPLOITATION STATISTICS

NATIONAL CENTER ON ELDER ABUSE AND FLA. DEPT OF ELDER

AFFAIRS CALLS ELDER EXPLOITATION

THE CRIME OF THE 21ST CENTURY

NUMBER OF ELDERLY WILL DOUBLE TO 70 MILLION WITHIN

NEXT 30 YEARS; HIGHEST GROWTH RATE FOR THOSE OVER 80

MEDIAN NET WORTH OF OLDER HOUSEHOLDS IS 2 TIMES

NATIONAL AVERAGE - CRIMINALS FOLLOW THE MONEY

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AGENDA FOR PRESENTATION________________________________________________

I. APPLICABLE FEDERAL & STATE LAWS

II. STATISTICS, IDENTIFICATION AND RECOGNITION

OF FINANCIAL EXPLOITATION

III. AVAILABLE PROTECTIONS

IV. BANK RESPONSIBILITY/PROCEDURES

V. CASE EXAMPLES

VI. QUESTIONS & ANSWERS

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APPLICABLE FEDERAL STATUTES________________________________________________

1. FEDERAL DEFINITION – PROVIDED BY THE OLDER AMERICANS ACT, 42 U.S.C. 3002 (24) - The term “exploitation” means the illegal or improper act or process of an individual, including a caregiver, using the resources of an older individual for monetary or personal benefit, profit or gain.

2. RIGHT TO FINANCIAL PRIVACY ACT – 12 U.S.C. Sec. 3401 et. Seq.

3403. Confidentiality of financial records

Nothing in this chapter shall preclude any financial institution, or any officer, employee, or agent of a financial institution, from notifying a Government authority that such institution, or officer, employee, or agent has information which may be relevant to a possible violation of any statute or regulation. Such information may include only the name or other identifying information concerning any individual, corporation, or account involved in and the nature of any suspected illegal activity.

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Such information may be disclosed notwithstanding any constitution, law,

or regulation of any State or political subdivision thereof to the contrary.

Any financial institution, or officer, employee, or agent thereof, making a

disclosure of information pursuant to this subsection, 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 or for any failure to notify the customer of

such disclosure.

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3. Financial Services Modernization Act of 1999 (known

as the Gramm-Leach-Bliley Act) 15 U.S.C. Subchapter 1

Sect. 6801-6809

Sec. 6802. Obligations with respect to disclosures of personal information

(e) General exceptions

Subsections (a) and (b) of this section shall not prohibit the disclosure

of nonpublic personal information

(e)(3)(B) to protect against or prevent actual or potential fraud,

unauthorized transactions, claims, or other liability.

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(e)(5) to the extent specifically permitted or required under other

provisions of law and in accordance with the Right to Financial Privacy

Act of 1978 (12 U.S.C. 3401 et seq.), to law enforcement agencies

(including a Federal functional regulator).

(e)(8) to comply with Federal, State, or local laws, rules, and other

applicable legal requirements; to comply with a properly authorized civil,

criminal, or regulatory investigation or subpoena or summons by Federal,

State, or local authorities; or to respond to judicial process or government

regulatory authorities having jurisdiction over the financial institution for

examination, compliance, or other purposes as authorized by law.

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APPLICABLE STATE LAWS_____________________________________________________

1. FLORIDA CRIMINAL STATUTES: Fla. Stat. Section 825

A. TAKING FINANCIAL ADVANTAGE OF A PERSON OLDER THAN 60 OR A PERSON WITH A DISABILITY WHO IS NOT IN COMPLETE COMMAND OF HIS OR HER MENTAL AND/OR PHYSICAL FACULTIES;

B. THE INTENTIONAL THEFT OF MONEY OR PROPERTY FROM A VULNERABLE PERSON AFTER GAINING HIS OR HER TRUST (ALSO CALLED: FINANCIAL MISTREATMENT, OR FIDUCIARY, ECONOMIC, FINANCIAL OR MATERIAL ABUSE);

C. ILLEGAL OR IMPROPER USE OF A VULNERABLE ADULT’S FUNDS, PROPERTY OR ASSETS; AND,

D. OBTAINING OR USING AN ELDERLY PERSON’S OR DISABLED ADULT’S FUNDS, ASSETS OR PROPERTY BY A PERSON WHO KNOWS OR REASONABLY SHOULD KNOW THAT THE ELDERLY PERSON OR DISABLED ADULT LACKS THE CAPACITY TO CONSENT.

NOT KNOWING THE AGE OR EXTENT OF A PERSON’S DISABILITY IS NOT A DEFENSE!!!!!!

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APPLICABLE STATE LAWS________________________________________________

2. ADULT PROTECTIVE SERVICES – FLA. STAT. SEC. 415.102(7)(a):

A. SOMEONE STANDING IN A POSITION OF TRUST TO A VULNERABLE

ADULT;

B. KNOWINGLY OR BY DECEPTION OR INTIMIDATION;

C. OBTAINS OR USES A VULNERABLE ADULT’S FUNDS, ASSETS OR

PROPERTY;

D. WITH AN INTENT TO PERMANENTLY DEPRIVE THE VULNERABLE

ADULT OF THE USE, BENEFIT OR POSSESSION; AND,

E. TO THE BENEFIT OF SOMEONE OTHER THAN THE VULNERABLE

ADULT.

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3. FLA. STAT. SEC. 415.02(10) DEFINES FIDUCIARY RELATIONSHIP

A. TRUST OR CONFIDENCE BY THE VULNERABLE ADULT IN THE

CAREGIVER, RELATIVE, HOUSEHOLD MEMBER OR OTHER PERSON

ENTRUSTED WITH MANAGEMENT OF THE PROPERTY OR ASSETS OF THE

VULNERABLE ADULT.

B. THERE IS TRUST OR CONFIDENCE IN THAT PERSON THAT HE/SHE IS

BOUND TO ACT IN GOOD FAITH.

C. AUTOMATIC FIDUCIARY RELATIONSHIPS INCLUDE COURT

APPOINTED OR VOLUNTARY GUARDIANS, TRUSTEES, ATTORNEYS, OR

AGENTS UNDER POWERS OF ATTORNEY.

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4. FLA. STAT. SEC. 415.1034 MANDATORY REPORTING

A. MANDATED REPORTER VS. PERMISSIVE REPORTER

B. IMMUNITIES (REPORT IN GOOD FAITH)

C. CRIMINAL PENALTIES FOR FAILURE TO REPORT

D. ISSUES – PRIVILEGES/FEDERAL LAWS

E. PROBLEMS WITH REPORTING – PERSON TELLS YOU NOT TO CALL

EXAMPLE: BANK OFFICIAL RECEIVES REPORT THAT CLIENT, WHO IS 90

YEARS OF AGE, BUT COMPETENT, IS LOANING MONEY TO A WOMAN IN

HER 30’S WHO SAYS SHE IS MARRIED AND NEEDS IT FOR HER SICK CHILD.

CLIENT TELLS YOU, BUT DOESN’T WANT TO GET HER IN TROUBLE. THE

PERPETRATOR DOESN’T FALL WITHIN THE DEFINITION OF THE STATUTE

SO A REPORT TO APS WILL NOT SUFFICE, WHAT CAN BE DONE?

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WHO IS THE EXPLOITER?

Exploiters come in all shapes, sizes and colors:

THEY INCLUDE:

SONS & DAUGHTERS ) FAMILY MEMBERS MAKEBROTHERS & SISTERS ) UP 80% OF ALL EXPLOITERS!FAMILY CAREGIVERS )NEIGHBORSACQUAINTANCESSTRANGERS

_________________________________________________

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EXPLOITATION STATISTICS________________________________________________

76% OF VICTIMS ARE BETWEEN AGES 70 & 89

WOMEN FALL PREY TO EXPLOITATION TWICE AS MUCH AS MEN

83% OF VICTIMS ARE WHITE; 17% FROM OTHER BACKGROUNDS

60% OF PERPETRATORS WERE ADULT CHILDREN

35% WERE OTHER RELATIVES, INCLUDING GRANDCHILDREN,

FRIENDS, NEIGHBORS, AND CAREGIVERS

REMAINDER WERE UNKNOWN (TELEMARKETERS)

ESTIMATED THAT 80% OF ALL CASES GO UNREPORTED

THE ICEBERG THEORY. WHY?

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WHAT DOES FINANCIAL EXPLOITATION LOOK LIKE?______________________________________________________________

DIRECT EXPLOITATION BY INDIVIDUAL

1. UNUSUAL ACTIVITY IN BANK ACCOUNTS

2. CAREGIVER ACCOMPANYING VICTIM TO BANK TO WITHDRAW $

3. SIGNATURE ON CHECK THAT DOES NOT RESEMBLE THAT OF VICTIM

A. SIGNATURE ON CHECK CLEARLY NOT THAT OF 93 YEAR OLDWITH PARKINSON’S DISEASE

4. NEWLY DRAFTED POWERS OF ATTORNEY OR CHANGES OR CREATION OF A WILL WHEN AN ELDER’S DECISION MAKING ABILITIES ARE IN QUESTION

A. SON REMOVED ALL ASSETS FROM ACCOUNT, TRANSFERREDHOUSE TO HIMSELF, AND MADE HIMSELF SOLE BENEFICIARYOF IRAS

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____________________________________________________

B. FLA NOW HAS SPRINGING POA REQUIRING AN AFFIDAVIT

FROM PHYSICIAN ATTESTING TO ELDER’S INCAPACITY –

MUST BE PRIMARY PHYSICIAN

5. UNPAID BILLS, WHEN SOMEONE SHOULD BE PAYING THEM

A. DCF CALLED IN WHEN LANDLORD REPORTED THAT VICTIM’S

ELECTRIC AND WATER TURNED OFF IN MIDDLE OF SUMMER

6. UNUSUAL CONCERN BY CAREGIVER THAT EXCESSIVE $ BEING EXPENDED

FOR CARE

A. GRANDSON REMOVED VICTIM FROM HIGHLY RATED NURSING

FACILITY INTO FACILITY WHERE SHE RECEIVED VERY POOR CARE. COST

SAVINGS OVER 50%; ELDER DIED 3 WEEKS AFTER MOVE

7. .MISSING PERSONAL BELONGINGS

A. CAREGIVER FOUND TO HAVE PAWNED VICTIM’S WEDDING RING

WHAT DOES FINANCIAL EXPLOITATION LOOK LIKE?

17SUNTRUST BANK

WHAT DOES FINANCIAL EXPLOITATION LOOK LIKE?

8. DELIBERATE ISOLATION BY FAMILY MEMBER OR HOUSEKEEPER

A. SYSTEMATIC ATTEMPTS TO SEQUESTER VICTIM FROM REST OF

WORLD - “CAN’T COME TO PHONE” “TOO SICK FOR VISITORS” -

CONTROLS EVERYTHING

9. STRANGERS WITH INCREASED INVOLVEMENT

A. YOUNGER MAN BEFRIENDS VICTIM AFTER LOSS OF HUSBAND,

TAKES CARE OF FUNERAL, CHARGES VICTIM $196K FOR SERVICE

_________________________________________________________

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WHAT DOES FINANCIAL EXPLOITATION LOOK LIKE?__________________________________________________________

10. CONSUMER FRAUD

A. TELEMARKETING

B. PROVIDING SS # TO GET SOMETHING FREE (IDENTITY THEFT)

C. ENTERING CONTESTS THAT REQUIRE PERSONAL INFORMATION

D. RECOVERY OF UNCLAIMED FUNDS

1. SCAM TARGETING ELDERLY AFRICAN AMERICANS - FLYER

ADVISING OF SLAVE REPARATIONS IF BORN BEFORE 1927. REQUESTED

SENIOR TO COMPLETE FORM AND THEY WOULD RECEIVE $5,000

E. FICTITIOUS IRS FORM ASKING CUSTOMERS OF BANK TO

COMPLETE. THEN PERPETRATOR HAS INFO TO ACCESS BANK ACCOUNT

19SUNTRUST BANK

AVAILABLE PROTECTIONS_____________________________________________________

1. IF THERE IS AN IMMEDIATE RISK OR DANGER, CALL 911!

2. GATHER DOCUMENTATION AND CALL ABUSE HOTLINE

A. FLA LAW REQUIRES ANY PERSON WHO KNOWS, OR HAS

REASONABLE CAUSE TO SUSPECT THAT A VULNERABLE ADULT IS

BEING ABUSED, NEGLECTED OR EXPLOITED SHALL IMMEDIATELY

REPORT SUCH KNOWLEDGE TO THE FLORIDA ABUSE HOTLINE

B. BY TELEPHONE: 1-800-96ABUSE (1-800-962-2873)

C. BY FAX: 1-800-914-0004 (MUST LEAVE A RETURN FAX)

1. WHAT YOU WILL NEED WHEN YOU CALL:

a. VICTIM’S NAME, ADDRESS/LOCATION, APPROX. AGE

RACE, SEX

b. BRIEF DESCRIPTION OF VICTIM’S DISABILITY

c. SIGNS OR INDICATIONS OF HARM OR INJURY

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AVAILABLE PROTECTIONS_______________________________________________

d. NAME, ADDRESS, TELEPHONE OF PERPETRATOR

e. RELATIONSHIP OF PERPETRATOR

f. AS TO THE REPORTER, YOUR NAME, ADDRESS AND TELEPHONE.

THIS INFORMATION IS NEVER GIVEN OUT AND WILL

REMAIN ANONYMOUS

3. ADULT PROTECTIVE SERVICES

A. AN INVESTIGATOR WILL RESPOND WITHIN 24 HOURS

B. WILL INTERVIEW VICTIM AND LEGAL REPRESENTATIVE EITHER BY

PHONE OR FACE TO FACE MEETING

C. WILL REFER TO LAW ENFORCEMENT/SAO IF SOME INDICATORS OF

ABUSE/EXPLOITATION ARE SEEN.

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D. WILL MAKE REFERRAL FOR NEEDED SERVICES

E. NOTIFIES PROBATE COURT IF A WARD

F. CAN PROVIDE EMERGENCY RESIDENCE IF NEEDED

G. IF MEDICAID IS INVOLVED, INCIDENT WILL BE REPORTED TO

MEDICAID FRAUD UNIT

4. CIVIL RESPONSES

A. FILE FOR EMERGENCY TEMPORARY GUARDIANSHIP (FLA. STAT. 744)

COURT AS ULTIMATE GUARDIAN CAN TAKE STEPS TO PROTECT WARD

1. STOP AGENT FROM ACTING UNDER POA

2. FREEZE ACCOUNTS

3. STOP SALE OR TRANSFER OF PROPERTY

4. REQUEST AN ORDER OF PROTECTION IF ABUSE IS INVOLVED

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5. FILE LAWSUIT TO RECOVER ASSETS

5. CRIMINAL RESPONSES

A. LAW ENFORCEMENT INVESTIGATION

B. STATE’S ATTORNEY’S OFFICE (ECONOMIC CRIMES DIVISION)

1.. WILL PURSUE CRIMINAL ACTION

2. VICTIM DOES NOT HAVE TO PROSECUTE

3. SAO WILL ATTEMPT TO OBTAIN RESTITUTION

C. ATTORNEY GENERAL’S OFFICE WILL PURSUE ACTIONS AGAINST

NURSING HOMES/ASSISTED LIVING FACILITIES WHERE SUSPICION OF

EXPLOITATION BY EMPLOYEE

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D. DIFFICULTIES IN MAKING A CASE AGAINST THE PEPETRATOR

1. TIME LIMITATIONS DUE TO AGE OF VICTIM (FL HAS A LAW

ALLOWING SPEEDY TRIAL FOR ELDER VICTIMS)

2. INABILITY OF VICTIM TO TESTIFY BECAUSE OF INFIRMITY OR

CONFUSION

3. FEAR BY VICTIM OF REPRISAL BY PERPETRATOR – ESPECIALLY A

FAMILY MEMBER

4. EMBARRASSMENT OR SHAME AT POSSIBILITY OF PUTTING LOVED

ONE IN JAIL

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PHYSICAL, EMOTIONAL & FINANCIAL CONSEQUENCES

A. CONSEQUENCES OF FINANCIAL EXPLOITATION

1. PHYSICAL

2. EMOTIONAL

3. FINANCIAL

B. INCLUDE:

1. LOSS OF SECURITY, STATUS

2. ABRUPT CHANGE OF LIFESTYLE

3. LOSS OF HOME, SERVICES

C. RESULT IN:

1. DEPRESSION

2. SHAME

3. MALNUTRITION

4. MORTALITY RATES – 3X HIGHER

25SUNTRUST BANK

BANK POLICIES AND PROCEDURES________________________________________________

Training for Employees – All Areas of the Bank

RESOURCES: TRIAD PROGRAMS – B*SAFE

FLAG

BANKER’S ASSOCIATIONS (CALIFORNIA) –

E- BASED TRAINING

GOVERNMENT AGENCIES (APS)

LAW ENFORCEMENT

PUBLIC GUARDIAN’S OFFICE/STATE GUARDIAN

LOCAL COALITIONS

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BANK POLICIES AND PROCEDURES________________________________________________

Internal Website with State Specific Requirements on Reporting and Definitions

of Abuse, Neglect and Exploitation;

Internal Website with Risk Identifiers and Examples;

Listing of Contact Information for Hotline Reporting and Resources

Establish Internal Legal/Security Contacts to Discuss Issues as They Arise

Establishment of Policies and Procedures

A. If suspect a problem, and not an emergency, discuss with your

supervisor (if an emergency, call 911);

B. Document any issues that are red flags and pertinent information;

C. Establish local community resources if unsure of how to proceed

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BANK POLICIES AND PROCEDURESCheck history on accounts of customer (if not sure, may monitor account and

determine a call is necessary once a pattern is determined). Flag account in notes

section (so other bank personnel are aware).

Develop an Incident Reporting Form that includes accounts of customer,

problems reported or noticed (dates and times); copies of unusual transactions;

pertinent description of alleged perpetrator (with as much information as you can

gather) and of victim (including appearance, alertness, dress and any specific

signs of abuse or neglect) and any other notes that would be helpful (e.g. Does the

alleged perpetrator allow the person to speak on his/her own?).

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BANK POLICIES AND PROCEDURES

If customer and alleged perpetrator are present demanding large sums of money, try to stall

the situation and say there is a problem on the account and immediately speak to a supervisor

and/or security/fraud department. The supervisor should say that he/she needs to speak to the

customer alone and try to resolve the problem. If the issue continues ask the customer to

come back the following day. Thereafter, the supervisor and bank personnel should call the

police or hotline after assessing the situation.

Sometimes there is a fine line as to whether an elder or disabled customer is competent to

make decisions, but if competent, the individual is allowed to make bad judgment decisions.

For example, customer comes in to deposit a check and asks that you wire the proceeds to an

account in Africa. You know of the scams going on with these scenarios and tell the customer

that it is probably too good to be true and they tell you to do the deposit and wire anyway.

This should be discussed with a supervisor and then reported to the fraud unit to contact the

client to assist them in possibly stopping the wire. Hopefully the client will listen, but if not,

there is nothing that can be done other than a report to the Attorney General’s Office.

(California Banker’s Association)

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CLIENT EXAMPLES____________________________________________________

1. A 75 year old lady who suffered from moderate stage Alzheimer’s Disease was taken to the hospital for a broken nose, which was caused by her son. At first, the case looked like it was an abuse case and was reported by the hospital to the hotline. An Emergency Temporary Guardian was appointed and the Temporary Guardian was given permission to inventory the personal property. The Temporary Guardian also obtained an order of protection against the son. Criminal charges were also filed against the son for aggravated battery of an elderly person. The Temporary Guardian proceeded to perform an inventory and secure the victim’s real property. Upon going through some paperwork, the Temporary Guardian discovered a Medicaid Card for the son and a statement from a brokerage company that was comprised of $800,000 in investments. The name on the account was in the son’s name. The Temporary Guardian requested emergency relief to freeze and investigate the asset. It was discovered that the son had his mother sign a statement (of course her signature was barely legible) to transfer the assets. Furthermore, the son never reported his new found wealth to Medicaid. A Plenary Guardianship was later established and the Guardian was able to recover the funds.

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CLIENT EXAMPLES____________________________________________________

2. A 97 year old lady was taken to the hospital with a fractured skull caused by her grandson. The lady was bedridden and suffered from Alzheimer’s Disease. The grandson lived in the basement of the home. Adult Protective Services was called and an Emergency Temporary Guardian was appointed. An order of protection was entered against the grandson, who subsequently pled guilty to aggravated battery of an elderly person and was sentenced to three (3) years in prison. At the time of the inventory, it was also discovered that there were new estate planning documents, including a Durable Power of Attorney for Property and a Trust that named the grandson as the fiduciary and the beneficiary. The order of protection also enjoined the agent and trustee from acting under those documents and a subsequent order was adopted by the Guardianship Court in the Plenary Guardianship Proceeding. Unfortunately, the victim passed away a few months later and the issue was turned over to the Probate Court. This case occurred in Illinois and the grandson did not inherit pursuant to law as his actions were a contributing factor to her death.

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CLIENT EXAMPLES________________________________________________

3. Customer has a special needs trust with $2 million in it for a young woman in her early 20’s who received a settlement from a car accident. She receives SSDI, Medicare and Medicaid Share of Cost. She recently went through rehab and is an alcoholic. She was originally living with her mother and was protected. She subsequently had an argument with her mother and moved in with her boyfriend who she met in rehab. She would then ask for money as the boyfriend got evicted from his apartment and would max out her credit card within days ($2,000 limit). When I wouldn’t continue giving money, she would show up, unannounced at the bank with the boyfriend requesting funds and requesting my supervisor when I said “no”. A couple months later we had a meeting at a local branch and I requested the attorney’s presence. The boyfriend was told by the attorney that he needed to meet with the customer alone and the boyfriend glared at me and through the window at her. I then met with the customer and the attorney and she became very upset and said she needed cash (after we went through the cash/benefit issues and her spending habits). I noticed some bruising on her and asked one simple question – “Are you afraid of him?” and that led to an answer of “afraid to death” and her fear of leaving with him. I called the police, moved her to a safe place and the attorney helped her get an order of protection.

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PERSONAL INVOLVEMENT___________________________________________________________________________

1. IF A FAMILY MEMBER, STAY INVOLVED IN THE CARE OF THE ELDER,

AND REPORT ANY SUSPECTED ACTIVITY TO THE HOTLINE – ALSO TALK

TO OTHER FAMILY MEMBERS ABOUT THEIR SUSPICIONS

2. IF A CAREGIVER, REPORT SUSPECTED EXPLOITATION TO YOUR

EMPLOYER AND TO OTHER FAMILY MEMBERS

3. IF A PHYSICIAN, LISTEN TO THE ELDER - OFTEN THEY HAVE NO ONE

ELSE TO TALK TO ABOUT THE EXPLOITATION BECAUSE THEY ARE

EMBARRASSED TO TELL THEIR FAMILY

4. IF A NEIGHBOR OR FRIEND, TELL THE FAMILY

5. .IF A BANKER, KNOW YOUR CUSTOMERS - IF YOU SEE SUSPICIOUS

ACTIVITY, REPORT IT TO YOUR EMPLOYER

REMEMBER IF IT LOOKS, FEELS, ACTS OR SMELLS LIKE EXPLOITATION,

IT PROBABLY IS!

suntrust bank financial exploitation _________________________ recognition, prevention, responses...

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