Where did all the money go?

Transcription

1 Where did all the money go? Financial Exploitation: What is it and how can we stop it No need for an introduction Education B.A & M.A from University of Iowa J.D. from Drake University Experience Founding partner of Kemp Eason Sease & Dyer Assistant Mahaska County Attorney Assistant Story County Attorney Administrator Office of Substitute Decision Maker 1

2 Roadmap for today It s all Greek to me Terminology We re going to need a bigger boat Scope Keeping up with the times Trends in exploitation Sometimes you re the hammer, sometimes you re the nail Tools used to commit the crimes There is something different about you Warning signs I m from the government and I m here to help How to help You say potato, I say pototo Elder Abuse Defined by Iowa Code 235F.1(3) Includes physical abuse/injury, sexual abuse, neglect and financial exploitation Financial exploitation defined as when a person stands in a position of trust or confidence with the vulnerable elder and knowingly and by undue influence, deception, coercion, fraud, or extortion, obtains control over or otherwise uses or diverts the benefits, property, resources, belongings, or assets of the vulnerable elder. Vulnerable Elder is defined as a person sixty years of age or older who is unable to protect himself or herself from elder abuse as a result of age or a mental or physical condition. 2

3 Age is but a number Upon the Petition of Judith Ann Chapman Iowa Supreme Court reviewed a finding of elder abuse in February 2017 Family fight about property; Ms. Chapman was 69 The statute makes it clear that if a person is sixty years or older and age alone, without a mental or physical condition, makes someone unable to protect himself or herself from elder abuse, then that person is a vulnerable elder Dissent stated that the facts of this case did not have any facts regarding mental or physical condition and the only testimony related to the receipt of eviction notices and that Ms. Chapman was just to old for it. You say potato, I say pototo Dependent Adult Abuse Iowa Code 235B Willful or negligent acts or omissions of a caretaker where they take financial resources for their own personal or pecuniary benefit without the informed consent of the dependent adult Dependent adult is defined as a person eighteen years of age or older who is unable to protect the person's own interests or unable to adequately perform or obtain services necessary to meet essential human needs, as a result of a physical or mental condition which requires assistance from another Theft Iowa Code 714 Misappropriates property which the person has in trust, or property of another which the person has in the person's possession or control, whether such possession or control is lawful or unlawful, by using or disposing of it in a manner which is inconsistent with or a denial of the trust or of the owner's rights in such property, or conceals found property, or appropriates such property to the person's own use, when the owner of such property is known to the person 3

4 Just the Facts MetLife Financial 2011 Study on Exploitation, Fraud, Trust Abuse Compiled financial losses reported and published and extrapolated $2.9 billion True Link Report on Elder Financial Abuse $36,480,000,000 ($36.48 billion) 46.6% Exploitation 35.1% Fraud 18.3% Trust Abuse A known loss of $20 due to exploitation normally equates to an expected annual loss of $2000 to other types of fraud wordpress assets.s3.amazonaws.com/wp content/uploads/true Link Report On Elder Financial Abuse pdf Just the Facts National Adult Protective Services Association 1 in 20 older adults indicate some form of perceived financial mistreatment occurring the in recent past 1 in 44 cases of financial abuse is ever reported 1 in 10 victims of financial abuse will turn to Medicaid as a direct result of the abuse Issues inherent in the gathering of this data Underreporting Definitions Overlap of abuse Lack of research 4

5 Keep your friends close Who perpetrates these acts Strangers Professionals Family Recent studies show the most common perpetrator is family (58%), followed by friends/neighbors (17%) Another study showed that fraud committed by strangers comprised 51% of the news articles related to financial exploitation, followed by family/friends/neighbors (34%) in the time period Survey Says What are people doing to commit financial exploitation Medicare/Health Insurance Scams Posing as a rep of Medicare or insurer and gaining personal information; used for identity theft or to bill fraudulent services to the government Counterfeit prescription drugs/supplements Increase in purchasing over the internet and outside of the U.S. Enrollment in automated payments; dangerous substances Funeral Contacting the spouse of a deceased and settling fake debts 5

6 Survey Says Grandparent Scam Uses social media to gain information; claims to need money Simply asks the question, Hi Grandma, do you know who this is? Sweepstakes/Lottery You ve won a large sum of money, in order to collect, you must pay fees/taxes/etc. Some will send a check that will bounce Investment (Nigerian prince, pyramid, etc.) In order to collect a huge some of money, wire a sum in order to start the process Survey Says Telemarketer Recording of voiced assent; recordings that sound very real Live sales calls Miscellaneous internet fraud Identity theft Virus Tech support 6

7 If you don t have family Tools used to perpetrate fraud Representative payee Conservatorship Power of attorney Substitute Decision Making Spectrum Guardianship Conservatorship Power of Attorney Representative Payee/VA Fiduciary 7

8 Representative Payee/VA Fiduciary No need for finding of incompetency Money in/money out Process set up by SSA/VA Solely a federal system, beware Representative Payee Reporting Requirements 8

9 Competency Judicial finding Burden of proof is on the party seeking the restriction by clear and convincing evidence A mental health commitment is not a finding of incompetence Capacity Ability to understand the nature and effect of one s acts Fluid concept; Snapshot in time Capacity needed to enter into legal documents, such as a durable power of attorney, contract, or a will, differs based upon the type of transaction Capacity to consent to medical procedures is determined by the criteria of informed consent 9

10 Competency and Conservatorship Decision making capacity which is so impaired that the person is Unable to make, communicate or carry out important decisions concerning their financial affairs Conservatorship Full, Limited, Temporary Voluntary vs. Involuntary Actions of Conservator which require ct approval Make payment to, or for the benefit of, the individual Annual report 10

11 Terminology Power of Attorney Principal Attorney in fact Agent Power of Attorney Durable Health Care Power of Attorney Who can create this document Anyone! Does not require an attorney or any legal assistance Requires signature of principal or another person on behalf of principal in their conscious presence Iowa Code 144B.3 & 633B.105 Requires acknowledgement Notary 11

12 What does the document need to say It can say as much, or as little, as the grantor/principal wants it to say This is why it is so important to read the document There are stock forms used many times, but not always Sign on the dotted line 12

13 The new and improved POA Uniform Power of Attorney Law (Iowa Code 633B) Change in Iowa Law on July 1, 2014 Now must be acknowledged (notarized) By default, revokes prior POA s By default, is considered Durable Lasts beyond the principals incapacitation Person exercising powers is called agent By default, effective date is at date of execution Requires acceptance of acknowledged POA by third parties POA s drafted prior to this date continue to be effective I ve been everywhere, man Documents from other jurisdictions Valid so long as they met the requirements necessary in that state at the time of execution This could require review by counsel 13

14 Power of Attorney Effectiveness Springing/Triggering Event Principal can authorize one or more persons to determine if the event has occurred This individual is deemed to be the principal s personal representative under HIPPA If the triggering event is the incapacity of the principal and no individual is identified or able to make such a determination Physician, psychologist, judge or appropriate government official can make such determination Power of Attorney Who can act Agents One individual named to act on behalf of the principal within the powers granted to them by the document Successor Agents An individual who will act if all named agents resign, die, become incapacitated, decline or are not qualified to serve Will have the same powers as the original agent unless specified A principal can grant authority to an agent or other individual to name successor agents 14

15 Power of Attorney Who can act Coagents Two or more persons designated to act as agents Unless specified, coagents shall act by majority action Power of Attorney What can they do General authority language allows the principal to make decisions concerning the principals property Real and personal property Money Bank accounts Apply for benefits Businesses Insurance Estate/Trust Taxes 15

16 Power of Attorney What can they do Specific authority language is required to allow the principal to make certain decisions Changes to a inter vivos trust Gift authority Power of Attorney What can they do Expectations/Duties In accordance with what the principal would have expected and is known by the agent Act in good faith Within the scope of authority granted Act with care, competence and diligence Keep records Attempt to preserve the principal s estate plan 16

17 Power of Attorney Termination A power of attorney terminates when Principal dies Principal revokes the power of attorney Documents provides for termination Purpose of the POA is accomplished Agent is removed/no longer able to act and no successor agents Agent s authority is removed when Principal revokes authority of agent Agent unable to act Divorce/Separation petition is filed and agent is spouse Reporting requirements of a POA 17

18 Danger Zone Risk Factors Low social support Dementia/cognitive impairment Functional impairment/poor physical health Large number of household members other than a spouse Lower income Non use of social services How we can help Being aware Many times, these crimes are discovered by accident Being accessible Have the time to have a quick chat Being knowledgeable Keep up with trends Being empathetic Allow the person to feel comfortable to reveal such incidents 18

19 How we can help Iowa Department on Aging Office of Substitute Decision Maker Insurance commission Fraud Fighters SHIIP Office of the State Long Term Care Ombudsman long term care ombudsman Iowa Attorney General consumers/for older iowans/ Local law enforcement Iowa Department of Human Services How we can help Consumer Financial Protection Bureau Great resources with material that you can use Department of Justice Elder Abuse Initiative Address all areas of elder abuse National Guardianship Association 19

20 Staff Tyler Eason Administrator (515) ; Sherri McLerran Program Planner II (515) ; 20