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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Relocation Not in Best Interest of Child

Case: Traci Nelson v. Tony Nelson  by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: The trial court reviewing Mother’s requested relocation erred when it found that Mother’s proposed relocation was not advanced in good faith. However, the trial court nevertheless reached a proper conclusion in denying the proposed relocation because the court correctly determined that the relocation would not be in Child’s best interests.

FACTS AND PROCEDURAL HISTORY: Mother and Father married in 2005, and shortly thereafter had Child. They divorced in 2007 and, by agreement, shared joint legal custody of Child, with Mother having primary physical custody.

In 2010, Mother filed a notice of intent to relocate to South Carolina, citing an inability to obtain employment in her field in Indiana. Mother had been selling medical equipment, but she lost her job and remained subject to a one-year non-compete agreement. Father filed an objection to Mother’s proposed relocation, and the trial court conducted an evidentiary hearing.

Following the hearing, the trial court denied Mother’s proposed relocation, finding that Mother’s move was not proposed in good faith and that, moreover, the proposed move would not be in Child’s best interests. Mother appealed the trial court’s denial of her proposed relocation.

The Court of Appeals analyzed the evidence presented in support of Mother’s relocation. The Court noted that the bar is set fairly low for a proposed relocation to meet the “made in good faith” requirement. The evidence suggested that Mother had a substantial family network in South Carolina — including her own mother recovering from a stroke who needed care — as well as perhaps better employment opportunities there. Thus, the reasons for the relocation advanced by Mother (to seek employment, to be closer to family, and to help care for her ill mother) rendered the trial court’s finding that Mother did not propose the move in good faith to be erroneous.

However, the Court of Appeals also reviewed the impact on the proposed move on Child. Most fundamentally, the parties’ limited economic circumstances, coupled with the 630-mile distance between Father’s residence and Mother’s proposed new home, would have dramatically diminished the Father-Child relationship. The Court concluded that the chance of preserving the relationship between Father and Child after relocation was doubtful. As such, the trial court was within its discretion to deny Mother’s relocation based upon it not serving the best interests of Child.

The trial court’s denial of Mother’s relocation request was affirmed.

To view the text of this opinion in its entirety, click here: Traci Nelson v. Tony Nelson _________________________________________________________________________________

The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips: More Ways Technology Has Changed Employment Law

How has an employer’s obligation increased with speedier electronic reporting capabilities? Which side has the tactical advantage in electronic communication? What are the causes of action available to employees based on modern technology?

Donna Panich, our Law Tips employment law contributor, is in the midst of sharing her expertise on several technological advancements that are impacting her area of practice. (Scroll down for her tips from last week.) Following are other interesting challenges that have emerged during Ms. Panich’s 35 years of advising employment law clients:

The Tactical Advantage of Asymmetrical Discovery Has Been A Powerful Weapon For The Plaintiff’s Bar

The proliferation of electronically stored information (ESI) has provided the plaintiff’s bar with a powerful weapon. Up to this point, most of the data in employment cases has been in the hands of the employer. The burden associated with the preservation, collection, review and production of that data has sent many an employer to the settlement table. If the plaintiff is able to assert a colorable claim of spoliation, the weapon becomes that much better.

Proposed amendments to the Federal Rules of Civil Procedure may have some impact on tempering the risks of spoliation. The advent of social media has created a source of ESI which may increase the amount of ESI controlled by plaintiffs and thus reduce the incline on the playing field. However, the tilt remains and will likely remain until (a) courts actively enforce the limits on discovery currently in the Federal Rules, (b) litigants and the courts recognize that the requirements of Rule 34 are not met by a discovery request for all documents hitting upon a set of search terms, and (c) everyone places greater emphasis on the speedy resolution of the merits rather than fulsome disclosure of “all” ESI on any topic remotely related to the litigation.

Employer Obligations, Investigations Of Failures To Meet Those Obligations, And Class-Based Litigation Have Expanded To An Enterprise Level

In a paper world, decisions were usually localized. Analysis of employment statistics was painfully slow. Cross country incidents were difficult to track. Electronic databases have changed all this. Not only is centralized control of decision making much easier, documentation of those decisions, and data relating to all those decisions, is centralized as well so that collection of the information, and tracking information is much easier.

As a result, the Occupational Safety and Health Administration tracks every citation issued at every facility of the employer or its affiliates. It can determine whether any patterns exist. It can escalate the severity of a violation to repeat or willful without regard to where a prior citation had been issued.

EEOC is able to conduct analyses across the entirety of a company’s workforce, as is plaintiff’s counsel. Moreover, an employer’s claim that producing data on a broad, enterprise level is overly burdensome is less appealing when the data can be requested and obtained in the form of an electronic report requiring only a few hours of programming time.

Given the trend in enterprise-wide investigation and litigation, employers may wish to emphasize localization of decisions while concurrently asking in-house counsel, or human resources, under the guidance of its counsel, to look at decisions on a broad basis. If patterns of adverse impact or underutilization are detected, corrective action may avoid broad liability. Likewise, it is imperative that the company maintain adequate inter-facility awareness of legal developments. Ignorance regarding problems at a sister plant a thousand miles away will not be a defense to a repeat or willful citation.

“Concerted Activity” Is Redefined And Enabled Through Social Media And Email

The National Labor Relations Act protects employee rights to engage in concerted activity regarding workplace issues such as wages and working conditions. Before the advent of electronic communications and social media, concerted activity usually involved employee meetings, strikes, boycotts, picketing, or other physical shows of disagreement, most of which were contained to the immediate environs of the dispute, were limited in message content, and largely involved only unionized workplaces. Now, employees can express disagreement with their wages and working conditions with little effect or inconvenience and can reach a diverse, widely scattered audience by using social media. Moreover, most of the cases coming before the National Labor Relations Board have arisen in non-unionized work environments.

A union seeking to organize a group of employees has traditionally been barred from directly communicating with employees on the employer’s work site. However, recent rulings from the National Labor Relations Board, as well as proposed new election rules, would give the union access to the target employees via email -perhaps even through the employer’s own email system.

Because of these new realities, most employers are actively rethinking and revising their social media and computer usage policies, unions are developing new organizing strategies, and plaintiff’s counsel should always consider the potential new cause of action available to an employee who is discharged or reprimanded based on the content of his or her communications.

Thank you again to Donna Panich for providing her dynamic update on technological advances impacting employment law. Her presentation on this topic is a segment of the seminar entitled, 54 Practical Issues, Tips and Traps for Employment Lawyers check out the On Demand Seminar or Video Replay Seminar by Clicking Here.

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About our Law Tips faculty participant:
Danuta (Donna) Bembenista Panich, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, has a varied practice dealing with all aspects of labor and employment law. However, since 1995, she has focused primarily on defending employers – including many of the nation’s largest companies – in class actions, multi-plaintiff and collective actions, pattern and practice claims, and other “bet the company” matters such as investigations of catastrophic industrial accidents. Ms. Panich has dealt extensively with electronic discovery and litigation preparedness. Since she joined Ogletree Deakins in 2007, she established, and has since served, as chair of Ogletree Deakins’ Record Retention and E-Discovery Practice Group.

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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