Law Tips: The Problem of Financial Exploitation of the Elderly and Disabled

Financial exploitation of the elderly and disabled has been called “the hidden epidemic.” Attorneys who represent the aged and disabled frequently encounter acts of financial exploitation. And attorneys must do what they can to protect their clients from the risk of being financially exploited.

This statement from James Voelz, ICLEF’s Elder Law Institute faculty member, is a reflection of his ongoing concerns about the elderly and disabled clients he serves. I am grateful that Jim agreed to share his expertise on protecting clients in the expanding elder law arena with Law Tips readers. This week he provides background on the “problem” and the applicable law. Then, as we go down this road, we’ll hear Mr. Voelz’s further advice on steps elder law attorneys may want to take to prevent exploitation of clients.

Jim Voelz’s thoughts on the financial exploitation problem:

The Indiana Adult Protective Services (“APS”) program received 41,334 reports, of which 10,506 reports were investigated during 2012. The reports were classified as follows: Abuse- 2,689, Neglect- 3,176, Self Neglect- 3,198, and Financial Exploitation- 1,443. How many cases of financial exploitation are reported? The estimates range from 1 in 5 to 1 in 44.

I recently met with an APS investigator who has almost 25 years of experience. He said that reports of financial exploitation are increasing, and voiced extreme frustration that he has never seen criminal charges filed against a person who financially exploited an elderly or a disabled person! He said that we have the tools to protect people in Indiana, but these tools are not being used effectively. He said the exploiters are getting away with financial exploitation when they are not being prosecuted. He said prosecutors do not file charges, because victims suffer from dementia or other health issues making it difficult to prove that a crime has been committed.

I also contacted Patrick D. Calkins, who is the Program Director for Adult Protective Services. Mr. Calkins told me that APS does not keep statistics about the number of financial exploitation reports that result in criminal charges being filed against the alleged perpetrator. He did verify that the most common excuse for failure to prosecute is “that the victims make bad witnesses.” But he said that his take on this is that homicide victims make bad witnesses also, but prosecutors still file charges for murder.

Mr. Calkins also told me that the victim’s attorney is often the victim’s last line of defense. Consequently, it is important that we do what we can to help our clients not become victims of financial exploitations, and if our client does become a victim, then to help stop the continuation of financial exploitation and to help our client seek appropriate remedies.

Adult Protective Services

Indiana has had an adult protective services (APS) law since 1985. See Indiana Code 12-10-3-1 through 12-10-3-31. Indiana is the only State in which the APS program is a criminal justice function.

The Division of Aging of the Indiana Family and Social Services Administration oversees the APS program. There are 16 APS unit geographic boundaries. APS has 42 field investigators who are employed by “hub prosecutors” who have a contract for services with the Division of Aging, and they are paid from State funds.

A person who believes or who has reason to believe that another person is an “endangered adult” shall make a report to the adult protective services unit, a law enforcement agency, or the Division of Aging on its statewide toll free telephone number (1-800-992-6978), as required by Indiana Code 12-10-3-9.

So what should an attorney, who knows that his client has been financially exploited, do?

Is the attorney required by law to report this? Yes, Indiana Code 35-46-1~3(a) does require a report to be made to the Division of Aging, APS, or a law enforcement agency.

But, what duties does the attorney have pursuant to the Indiana Rules of Professional Conduct?

Rule 1.14(b) and (c) outlines these responsibilities. (Law Tips note: Here is a link to specific language of Rule 1.14: Indiana Rules of Professional Conduct. Consult the Rules for guidance on when a lawyer is permitted or required to take protective measures. One comment to the Rule concludes as follows: “The lawyer’s position in such cases is an unavoidably difficult one.”)

Suspicious Activity Reports

The Financial Crimes Enforcement Network of the United States Department of the Treasury issued an Advisory to financial institutions regarding the filing of suspicious activity reports regarding elder financial exploitations on February 22, 2011. Please refer to http://www.fincen.gov/statutes_regs/guidance/html/fin-2011-a003.html. The Advisory lists potential indicators of elder financial exploitation.

If the financial institution has a reasonable explanation for the transaction based upon the available facts, including the background and possible purpose of the transaction, it is relieved of the obligation to file a Suspicious Activity Report.

Attorneys who are representing clients or other agents who are involved in an activity with a financial institution that could result in the institution filing a Suspicious Activity Report should provide the financial institution with a reasonable explanation for the transaction. This may prevent a visit from Federal or State law enforcement.

Senior Consumer Protection Act

Indiana has a new law called the Senior Consumer Protection Act that became effective July 1, 2013. The Act provides civil remedies involving financial exploitation of a person who is at least 60 years of age. The Act can be found at Indiana Code 24-4.6~6-1 through 24-4.6-6-6.

We’re breaking here in Jim Voelz’s discussion of financial exploitation of the elderly and disabled. But he continues to share his expertise next week in areas such as the right timing for a person to gift their assets and the amount of power given to the attorney-in-fact.

For a comprehensive update in elder law from an outstanding panel, check out the 2014 Elder Law Institute on October 9-10, 2014.

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About our Law Tips faculty participant:
James K. Voelz, Voelz Law, LLC, Columbus, Indiana. Mr. Voelz ‘s law practice primarily involves estate and disability planning, estate and trust settlement, elder law, and Medicaid qualification services. Jim is a member of Hoosier Hills Estate Planning Council, National Academy of Elder Law Attorneys and its Indiana Chapter, and the Indiana State Bar Association’s Elder Law and Probate, Trust and Real Property Sections. Mr. Voelz serves on the Committee on Character and Fitness of the Indiana Supreme Court.  And he is also the author of “Senior Moments” newsletter.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Logic & Feeling Can Play Role in Decision – Or Not

By Marty Latz, Latz Negotiation Institute

A consulting client recently accepted a very attractive offer to settle a lawsuit despite a pretty accurate analysis that the case – if taken to trial – would almost certainly result in a much better result.

This seems illogical. Yet the client was quite satisfied with the settlement.

Why? And what can we learn from this?

Logic doesn’t always drive negotiation actions.

Spock in the TV and movie series “Star Trek” famously relies on logic to make his decisions and actively spurns the emotions that sometimes drive human decision-making.

Of course, we are not of mixed Vulcan/human heritage like Spock – yet some of us tend to overly rely on logic and rationality in making significant negotiation decisions.

Here is an example. In the above lawsuit, I pointed out that my clients’ leverage was particularly strong by their own analysis as Plan B – going through trial – was highly likely to result in millions more for their clients than the settlement on the table. And the risk was pretty small that they would get a worst result.

Based on pure logic and a risk analysis, it would have made sense to reject the offer on the table and negotiate aggressively for more.

Yet my clients took the offer – the bird in hand. Why? Because even though they very likely would have done better with their alternative/Plan B, it still involved risk. And they just did not want that risk.

Plus, the settlement was in the millions and would transform their lives anyway. Millions more would not likely have made much difference for them.

It seems logical – but also illogical.

Fortunately, there is a lot of psychological research in risk aversion. The bottom line negotiation wise: Truly evaluate your capacity and interest in risk and the potential outcomes. Then make your decisions based on your Plan B and the risks associated with it.

My clients made the right decision for them, given their risk aversion. Others might have made a different decision – which also could have been right for them.

Feelings and emotions legitimately impact negotiation decisions.

“I just have a good feeling about this potential partner,” a purchasing director might note concerning a possible new supplier. Or “I know this company does not quite add up on paper like others, but this deal just feels right.”

Spock, of course, would point out the unscientific nature of these feelings and lay out the logical, rational course of action. And sometimes Spock would be right.

But sometimes Spock would be wrong, too. A big part of the negotiation process involves feelings and emotions. And it would be wrong to completely discount them.

On the other hand, we also shouldn’t solely rely on them to drive our decisions.

What should you do? One, drill down and ascertain why you have that good feeling about that potential partner or why that deal just feels right. Consider brainstorming this with a colleague, as others’ objective analyses may be quite helpful.

And two, consider the intensity of the feeling or emotion and any possible feelings of regret you might have if you do not get the negotiation or deal closed.

When my wife and I were looking for a house and we walked into the house that we eventually bought, my wife turned to me and said she loved it. (Fortunately the selling real-estate agent was not there at the time!) I knew then that her intensity was such that – even though other houses may have seemed to satisfy more of our interests – my wife already formed a strong emotional attachment to this house.

My consulting clients felt that they were getting a sizable settlement. So they took it despite their strong leverage. I doubt they will regret it.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

ICLEF Expands Reach of Scholarship with Indiana Law Update

35th Annual Judge Robert H. Staton Indiana Law Update 2013, Sept. 26 & 27, 2013

Record Setting Attendance at the 2013 Indiana Law UpdateTM Seminar

 

36th Annual Judge Robert H. Staton Indiana Law Update, Sept. 23-24, 2014: An ICLEF 12 CLE Seminar

July is here and that means it is time to register for this year’s Indiana Law UpdateTM Seminar. This is the ORIGINAL program that you have been attending and is the Only one that has existed since 1979. It continues to offer exactly what you are looking for – the finest scholarly review of the latest trends, developments and changes in Indiana Law – and how those changes effect you and your practice. Do not be confused by another program. Indiana Law UpdateTM is the Original – the one you know and have placed your trust in for 35 years!

ICLEF is proud of our longstanding support of scholarship funding for law students. Since the inception of the Robert H. Staton Indiana Law UpdateTM program in 1979, ICLEF has provided significant financial support to the Robert H. McKinney Alumni Association as well as local bars and foundations.

ICLEF has recently extended the reach of this tradition by providing funds to each of the four accredited Indiana Law Schools. ICLEF is without equal in our financial support for the continuing legal education of future Indiana Lawyers. Your commitment to the Indiana Law UpdateTM program makes this possible.
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” Thank you for your support of the Notre Dame Law School and Thomas L. Shaffer Public Interest Fellowship Account.”
- Nell Jessup Newton, The Joseph A. Matson Dean & Professor of Law, University of Notre Dame

” Thank you for your gifts to the IU Robert H. McKinney School of Law and the IU Maurer School of Law Scholarship Fund on behalf of the Judge  Robert H. Staton Indiana Law UpdateTM Program. Through your generous support, deserving young men and women have access to a world-class education”
- Daniel C. Smith, President & CEO, Indiana University Foundation

“Thank you for your generous support of our Law Students. Your donations to the School of Law Annual Fund ensures that talented young scholars who wish to earn a Valpo degree will have the means to do so.”
- Mark A. Heckler, Ph. D., President, Valparaiso University

“Your generosity is greatly appreciated. Private philanthropic contributions from our friends is essential, and your gift helps to bridge the gap between the cost of tuition and the true cost of educating every McKinney Law Student.”
- Andrew R. Klein, Dean & Paul E. Beam Professor of Law, Robert H. McKinney School of Law, Indiana University, Indianapolis

“Thank you for the generous contribution that we recieved through the Judge Robert H. Staton Indiana Law UpdateTM program. Such support makes a real difference and is deeply appreciated. We are grateful for this contribution, and for the ongoing relationship with ICLEF.”
- Hannah L. Buxbaum, Interim Dean, IU Maurer School of Law, Bloomington
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36th Annual Judge Robert H. Staton Indiana Law UpdateTM
12 CLE / 1E
– Tuesday & Wednesday, September 23 & 24, 2014  •  8:50 A.M. – 4:45 P.M (Both Days)

For your convenience this years program will be available simultaneously in multiple locations across the state:

LIVE IN-PERSON SEMINAR
- Indiana Convention Center, 500 Ballroom
100 S. Capitol Ave., Indianapolis, IN 46225

LIVE GROUP WEBCASTS
- Grand Wayne Center, Fort Wayne
120 W. Jefferson Blvd., Fort Wayne, IN 46802

- Blue Chip Resort & Casino, Michigan City
   777 Blue Chip Drive, Michigan City, IN 46360
   Program begins at 7:55 A.M. Central Time

- DeFur Voran Law Office, Muncie
   400 S. Walnut St., Suite 200, Muncie, IN 47305

- Taft Stettinius & Hollister Law Office, Indianapolis
   130 E. Ohio St., Suite 3500, Indianpolis, IN 46204

LIVE INDIVIDUAL WEBCASTS OF DAY 1 & 2
- From your home or office computer or tablet

 

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Steven H. Ancel

ICLEF Mourns the Passing of a Great Friend – Steven H. Ancel

Steven H. AncelIt is with great sadness that we inform you of the passing of an ICLEF friend, mentor, faculty member and past ICLEF Board of Director member, Steven H. Ancel

Steve passed away early this morning, Thursday, August 14, 2014.  His leadership, counsel and friendship will be deeply missed by all that knew him.

Steve was a member and officer of the ICLEF Board of Directors for many years where he served as a member of the ICLEF Executive Board as Treasurer.  For over 30-years Steve served as seminar chair and faculty member on numerous ICLEF seminars including The Sigmund J Beck Advanced Bankruptcy Roundtable and the Annual Bankruptcy Institute, a program that Steve was instrumental in developing and had chaired for 25-years.

Steve will be greatly missed by all of us here at ICLEF.  We are honored that we had the privilege to know Steve these many years.

Funeral services will take place on Sunday, August 17, 11:00 A.M. at Beth-El Zedeck, 600 West 70th Street, Indianapolis, Indiana.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN
Photo courtesy of Taft Stettinius & Hollister and the Indiana Bar Foundation.

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