The Elder Abuse Prevention and Prosecution Act of 2017 includes new initiatives to root out financial elder abuse and exploitation – from financially abusive family members, or from criminals targetting the elderly.
By Jack Bernstein, Personal Injury Lawyer
Family law practitioners are constantly on the lookout for new ways to help clients fight elder abuse and financial fraud. The continuing battle against financial exploitation of seniors has recently turned the heads of Congress and the U.S. President. They’ve signed new federal laws into place with the goal to help fight against elder abuse. Family law attorneys should be aware of the laws as they add new resources for seniors and their families who are victims of financial exploitation.
Laws to Discover and Prevent Financial Elder Abuse
Congress passed the Elder Abuse Prevention and Prosecution Act (Public Law 115–70—October 18, 2017) with the intention of giving law enforcement the resources that they need to fight elder fraud more effectively. There are many components to the law that include new initiatives to discover and root out elder abuse and exploitation. The law also expands the definition of financial telemarketing fraud and calls for enhanced penalties for individuals convicted of targeting seniors with telemarketing and email fraud.
Key Provisions of the Elder Abuse Prevention and Prosecution Act
The Act creates positions in each division of the U.S. Department of Justice to focus on elder abuse investigation and prosecution. The employees are called Elder Justice Coordinators. Each person serving in the position of Elder Justice Coordinator may participate in outreach programs to raise public awareness on elder abuse matters. They may prosecute elder abuse cases, and they serve in an advisory capacity to others in the district on elder abuse matters.
Training on Elder Abuse for FBI Agents
The Director of the Federal Bureau of Investigation must ensure that all FBI agents are trained in the investigation of elder abuse crimes. Training must include how to communicate with victims as well as training in forensic investigations of elder abuse crimes.
Provisions of Resources to Assist the Prosecution of Elder Abuse Cases
The United States Attorney General must create a resource group to help prosecutors throughout the United States share knowledge, pleadings, documents, and training matters relating to elder abuse. The Attorney General must also create a subcommittee for advising the Attorney General on elder abuse practices within the Department of Justice. The Attorney General must designate one employee as the Elder Justice Coordinator within the Department of Justice.
Collecting Data on Elder Abuse
The Act requires the Attorney General to collect and report information on elder abuse in the United States. The Attorney General along with the Secretary of Health and Human Services must collect data from local law enforcement and publish it in an accessible place within one year of the Act going into effect. Data collected must include cases where one or more victims are elders or cases where elders are the target of fraudulent behavior. The public report must provide summary data as well as recommendations to improve reporting.
Expanding the Definition of Telemarketing Fraud to Include Email Fraud
The Act broadens the definition of telemarketing fraud to include email fraud. The Act amends the definition of telemarketing fraud by replacing the language “telemarketing marketing” with “telemarketing or email marketing.” It goes on to define several types of activities that constitute prohibited telemarketing or email marketing fraud.
If an elder is the victim of email fraud, the Act protects them in that it expands the definition of telemarketing fraud to include email fraud. The expanded definition creates criminal penalties and may also strengthen the victim’s civil claim for activities that amount to email fraud. The family law practitioner should be aware of the addition to the law in cases of email fraud while being mindful that traditional legal remedies for financial fraud and exploitation are still the most likely paths to accountability for perpetrators of elder abuse and fraud.
Forfeiture of Assets Earned Through Telemarketing Fraud
Any individual who is convicted of elder abuse must forfeit any money or properties used to commit the offense. They also forfeit the money or goods that they obtain because of the fraud. Forfeiture is mandatory for convicted individuals.
Review of Guardianship Procedures
As family law practitioners know, when a senior has a court-appointed guardian or conservator, the individual that the court selects has a tremendous amount of authority and influence over the person and financial life of the senior involved. The Elder Abuse Prevention and Prosecution Act amends section 2042(c) of the Social Security Act to call for investigating guardianship appointment procedures and the use of guardianships in state court proceedings. The Act calls for programs to assess court-appointed guardianship and conservator programs.
The Act amends the Social Security Act to require courts to assess the fairness, efficiency, and overall operations of guardianship programs. Courts must make necessary changes including conducting background checks, creating accounting requirements for guardians, simplifying the guardianship process, and rooting out fraud in the guardianship process. The Act provides for grants to fund the work.
The Elder Abuse Prevention and Prosecution Act does not create a private cause of action. Although the Act may help root out senior financial exploitation as a whole, an individual, victimized senior doesn’t have a private course of action based on the Act. Instead, victims may still rely on the fiduciary duty of the guardian to act in the best interests of the senior that they represent. In addition, a senior may benefit from the resources that are allocated to state governments to prosecute senior financial exploitation.
The Senior Safe Act
In addition to the Elder Abse Prevention and Prosecution Act, the Senior Safe Act is another recently passed federal law aimed at protecting vulnerable seniors. The Senior Safe Act exempts employees and financial institutions from legal liability when their employees report suspected financial exploitation. To receive the protections of the law, financial institutions must train their employees on how to recognize fraud and financial exploitation.
Jack Bernstein is a Miami, Florida personal injury lawyer with over 36 years of experience. He has been involved in more than 50,000 cases since opening his law practice in 1983. www.bernsteinandmaryanoff.com
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