There is a need for strong protection of the elderly investing population. About one out of every five Americans 65 years and older has been a victim of financial abuse. The elderly are estimated to lose up to $2.9 billion per year from scams. In fact, these figures are likely lower than the actual incidence of fraud since only reported accounts of frauds are considered and seniors are less likely to report being scammed.
Elders are abused by a variety of explicators including family members, caregivers, scam artists, financial advisers, fiduciaries (such as agents under power of attorney and guardians), and others. Usually the person is already in a position of trust or is able to acquire a high level of trust due to the diminished capacity of the victim.
Brokerage firms and brokers are in the perfect position to recognize the signs elder abuse and elder fraud. Brokers can recognize diminished capacity and dementia, decreased ability to handle finances, questionable purchases or transfers, and the inability of their clients to understand or comprehend their financial assets. As such, when there are reasonable grounds to believe a firm client is being financially exploited the member firm must report potential exploitation to proper authorities and otherwise hold transactions pending review and determination.
Financial institutions such as investment advisors have a vital role in preventing and responding to elder abuse. Once detected, firms must act to protect their client by placing a hold on all transactions and by alerting regulators or the proper law enforcement authorities. According to the 2013 Nationwide Survey of Mandatory Reporting Requirements for Elderly and/or Vulnerable Persons, all states have passed statutes requiring certain professionals (i.e., attorneys, accountants, doctors, nurses and other health care workers, nursing homes and care providers) to notify law enforcement agencies. Twenty-one (21) states and the District of Columbia require financial institutions to report adhere to reporting requirements. Three states - Iowa, Virginia and Washington - include "financial institutions" among the group of professionals who may report instances of financial abuse, but reporting is permissive, not mandatory.
Many financial institutions that do not report on elder abuse claim that privacy laws prevent them from reporting to regulators about suspected misconduct. In September 2013, to combat these false concerns, The Board of Governors of the Federal Reserve System (Federal Reserve), Commodity Futures Trading Commission (CFTC), Consumer Financial Protection Bureau (CFPB), Federal Deposit Insurance Corporation (FDIC), Federal Trade Commission (FTC), National Credit Union Administration (NCUA), Office of the Comptroller of the Currency (OCC), and Securities and Exchange Commission (SEC) issued joint guidance to financial institutions to clarify the applicability of privacy provisions of the Gramm-Leach-Bliley Act (GLBA) to reporting suspected financial exploitation of older adults.
The notice stated that section 502(e) of the GLBA provides a variety of exceptions to disclose information to nonaffiliated third parties. The report stated that “disclosure of nonpublic personal information about consumers to local, state, or federal agencies for the purpose of reporting suspected financial abuse of older adults will fall within one or more of the exceptions.” For instance, “A financial institution may disclose nonpublic personal information to comply with federal, state, or local laws, rules and other applicable legal requirements, such as state laws that require reporting by financial institutions of suspected abuse.” See 15 U.S.C. 6802(e)(8). In addition, “a financial institution may disclose nonpublic personal information to protect against or prevent actual or potential fraud, unauthorized transactions, claims, or other liability.” See 15 U.S.C. 6802(e)(3)(B).
Our firm handles cases of elder abuse in the financial industry. These cases vary in context. In some cases, investment advisors use a client’s diminished capacity to misappropriate funds or otherwise exploit that persons assets – such as having a the investment advisor inherit under a will. In other cases, brokers allow third-parties access to an elderly person’s account by allowing wire transfers, powers of attorney, distributions, or checks to be sent under circumstances that are suspicious. These third-parties can be a variety of persons including relatives, scam artists, accountants, bookkeepers, or others that have cultivated the trust of the abused person. In many cases these clients are referred to our firm by concerned relatives or third-parties who believe that the best interests of the elderly person has been exploited.