In all the proposed rules by FINRA and the SEC to address financial exploitation of seniors, advisors are urged to report suspected abuse to the local Adult Protective Services or to call the police. Unfortunately that is not always a solution. There seems to be a lack of clarity about how things work. Here's a typical scenario that illustrates an issue.

Myra is 87 and her daughter, Lexie has been taking advantage of her for years. Myra feels sorry for her daughter because she can't seem to hold a job. Never mind she has a drug habit. Myra has means and she often gives Lexie "loans" that are never repaid.

Lexie gets a power of attorney from Myra, goes with Myra to her financial advisor and tells the advisor that Myra needs $80,000 for a trip they are going to take. Myra is disabled and never travels. The advisor knows this. Advisor decides after seeing several of these demands for withdrawing Myra's funds under suspicious circumstances that Lexie is abusing Myra. The total amount withdrawn at Myra's request is over $150,000 in six months, which is highly unusual.

Advisor calls the police. They refer her to Adult Protective Services. APS takes a report over the phone, asks questions and then asks Advisor to fill out a report form. She fills it out and reports the recent questionable $80K demand and withdrawal and she lists the total taken of $150K. She puts Lexie's name on it as the person suspected of financially abusing Myra.

APS sends a social worker out to investigate the complaint and to visit Myra at home. Myra finds the worker to be very nice and they chat. "Has your daughter ever pressured you to give her money?" the worker asks. "No", says Myra. "Do you remember giving her gifts or loans totaling $150K this year?" the worker asks. "I don't think I did that"Myra says. The worker asks if she is in the habit of giving money gifts to Lexie and Myra says yes, that Lexie is her daughter and she needs some help sometimes. The worker concludes that giving money to Lexie is what Myra wants and the case does not go any further. No one has tested Myra to see if she is competent to understand the consequences of giving her assets to Lexie, particularly since she has two other adult children.

In this case the facts are not clear enough to prove that a crime was committed. APS will not recommend that Lexie be prosecuted because even though giving away money is not in Myra's best interests, she is assumed to be competent to do so. In this case APS is not solving any problem and takes no further action. If Myra did not want the funds to be given to Lexie it would be different and elder abuse could be proven perhaps. As is there is too much doubt about Myra agreeing to be taken advantage of by Lexie, no prosecutor could meet its burden of proof.

The Other Option

Lexie's other two siblings were not initially aware of the abuse by Lexie. Their potential inheritance is directly affected by their sister's actions and when they find out they call APS also. The case is closed and they get nowhere. They are furious.

They consider another option. If there is no crime here that can be proven, there may be a civil case. They contact an attorney who handles civil cases of elder financial abuse.   The attorney does an investigation and finds out that Lexie has bought a condo with the money taken from Myra. The attorney successfully proves that Myra was duped by Lexie and the matter is settled by Lexie's attorney agreeing to sell the condo and give the proceeds back to a fund set up for Myra in case she needs more cash as she ages. And the settlement agreement says that Lexie will inherit no part of the fund. Further, the power of attorney Lexie got is torn up and Myra appoints a more responsible agent, another daughter who now oversees all of Myra's finances.

With a misunderstanding of how law enforcement works, there is a belief that all one must do is report to APS and somehow, financial abuse will be stopped. But when APS finds insufficient proof, or a wiling victim like Myra, they do not intervene. They are essentially reporters to law enforcement but APS does not prosecute anything. A civil case is outside their sphere and a civil attorney must be consulted to explore whether one can pursue that possible way of recovering an elder's assets that have been wrongfully taken.

The Takeaway

The important thing to know here is that APS is limited in what it can do. A criminal case of any kind has to be proven "beyond a reasonable doubt." Any advisor who wants to keep senior clients safer needs to understand that a willing victim will pretty well destroy a criminal case of abuse. A civil case is a possibility as long as there is an asset (in Lexie's case, a condo) to get and someone who is not a willing victim (in Lexie's case, her siblings). One should know a competent elder abuse attorney to consult and find out if your client has that choice in taking legal action or if her heirs do. Making a few calls is the least you can do to protect your client.

By Carolyn Rosenblatt, RN, Elder law attorney, AgingInvestor.com