Florida Elder Law & Estate Planning Blog
Rule to curb senior financial exploitation coming in 2018
May 9, 2017
Older Americans are losing $2.9 billion to financial exploitation each year, according to a 2011 Met Life survey. That may be too conservative a figure, given the reluctance of victims to report the crime for reasons that include embarrassment over having been duped; fear of being labeled incompetent; and refusal to implicate family members who may be perpetrators. In fact, family members are often to blame: A 2016 Bank of America Merrill Lynch survey of its advisers found that when abuse was suspected, children of the victim were the potential culprits in most instances.Investment firms (broker dealers) are often on the front lines of this problem. Accordingly, the Financial Industry Regulatory Authority (FINRA) has introduced guidelines (Regulatory Notice 17-11) for its members to follow when financial exploitation is suspected. These guidelines are scheduled to go into effect February 2018. Briefly, the provisions are:
- When a senior investor opens an account, the institution is required to ask him/her for the name and contact information of a “trusted contact person” with whom the institution may communicate if exploitation is suspected. Existing customers will be asked the same question when their customer profile is updated. However, a customer who does not provide this information is not prohibited from opening an account or maintaining an existing account.
- If an institution suspects financial exploitation of someone age 65 or older, or someone age 18 or older who it is believed cannot protect his own interests due to physical or mental impairment, it can place a temporary hold of up to 15 business days on the disbursement of funds or securities from the account. The rule applies only to suspicious disbursements of funds or securities, not to securities transactions (buying or selling stock within an account). Once the temporary hold commences, the institution must contact the customer and the trusted contact person to investigate the matter within two business days.
Some critics allege that the FINRA rule lacks teeth because it does not require firms to contact the appropriate law enforcement authorities and protective services. This contrasts with model legislation proposed by the North American Securities Administrators Association (NASAA). That organization’s guidelines, already adopted by several states and under consideration elsewhere, has a mandatory reporting requirement. Florida has not yet adopted this legislation.Read the new FINRA regulation (pdf), click here.