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Financial Exploitation

Financial Exploitation. Legal. § 108A‑102.  Duty to report; content of report; immunity. Legal Section. (a)  Any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information to the director.

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Financial Exploitation

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  1. Financial Exploitation Legal

  2. § 108A‑102.  Duty to report; content of report; immunity. Legal Section • (a) Any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information to the director. • (b)        The report may be made orally or in writing. The report shall include the name and address of the disabled adult; the name and address of the disabled adult's caretaker; the age of the disabled adult; the nature and extent of the disabled adult's injury or condition resulting from abuse or neglect; and other pertinent information. • (c)   Anyone who makes a report pursuant to this statute, who testifies in any judicial proceeding arising from the report, or who participates in a required evaluation shall be immune from any civil or criminal liability on account of such report or testimony or participation, unless such person acted in bad faith or with a malicious purpose. (1973, c. 1378, s. 1; 1975, c. 797; 1981, c. 275, s. 1.)

  3. § 14-112.2. Exploitation of an older adult or disabled adult. (a)   The following definitions apply in this section: (1)        Disabled adult. - A person 18 years of age or older or a lawfully emancipated minor who is present in the State of North Carolina and who is physically or mentally incapacitated as defined in G.S. 108A-101(d). (2)        Older adult. - A person 65 years of age or older. (b)  It is unlawful for a person: (i) who stands in a position of trust and confidence with an older adult or disabled adult, or (ii) who has a business relationship with an older adult or disabled adult to knowingly, by deception or intimidation, obtain or use, or endeavor to obtain or use, an older adult's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the older adult or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the older adult or disabled adult. (c)  It is unlawful for a person to knowingly, by deception or intimidation, obtain or use, endeavor to obtain or use, or conspire with another to obtain or use an older adult's or disabled adult's funds, assets, or property with the intent to temporarily or permanently deprive the older adult or disabled adult of the use, benefit, or possession of the funds, assets, or property, or benefit someone other than the older adult or disabled adult. This subsection shall not apply to a person acting within the scope of that person's lawful authority as the agent for the older adult or disabled adult.

  4. State & Federal Banking LawLegal Section • Providing financial information: Both state and federal law provide exemptions from privacy laws to allow financial institutions to make reports of financial exploitation and to release financial information to state and local authorities investigating financial exploitation.

  5. Federal Law31 U.S.C. sec. 5318 (g) (3):Legal Section • Any financial institution that makes a disclosure of any possible violation of law or regulations or a disclosure pursuant to this subsection or any other authority, and any director, officer, employee, or agent of such institution, shall not be liable to any person under any law or regulation of the United States or any constitution, law, or regulation of any State or political subdivisions thereof, for such disclosure or for any failure to notify the person involved in the transaction or any other person of such disclosure

  6. 12 U.S.C. 3403 (c) legal section • Nothing in this title shall preclude any financial institution, or any officer, employee or agent of a financial institution, from notifying a Government authority that such institution or officer, employee, or agent has information which may be relevant to a possible violation of any statute or regulation. Such information may involve only the name or other identifying information concerning any individual, corporation or account involved in and the nature of any suspected illegal activity… Any financial institution, or officer, employee, or agent thereof…shall not be liable to the customer under any law or regulation of the United States or any constitution, law or regulation of any State or political subdivision thereof, for such disclosure of or any failure to notify the customer of such disclosure.

  7. In 1999 the Financial Services Modernization Act (often known as the Gramm-Leach-Bliley Act) was passed: legal section • This Act contains strong privacy protection and requires notification to customers before disclosures of their records and an opportunity to disapprove the proposed disclosure. However Section 502(e) of the Act contains exceptions to this privacy protection. Three are relevant to state reporting programs: • ●(e)(3)(B) permits disclosure “to protect against or prevent actual or potential fraud, unauthorized transactions, claims, or other liability.” • ●(e)(5) permits disclosure “to the extent specifically permitted or required under other provisions of law…to law enforcement agencies…or for an investigation on a matter related to public safety.” • ●(e)(8) permits disclosure “to comply with Federal, State, or local laws, rules, and other applicable legal requirements.”

  8. North Carolina Banking Lawlegal section • The North Carolina Financial Privacy Act under 53B-2 (4) and 53B-8 set out that a bank is not prohibited from giving notice of or disclosing a financial record to a government authority. • 53B-2 (4)   "Government authority" means an agency or department of the State or of any of its political subdivisions, including any officer, employee, or agent thereof.

  9. § 53B‑8.  Disclosure of financial records. Legal section • No financial institution or its officer, employee, or agent may disclose a customer's financial record to a government authority except as provided in this Chapter. This section does not prohibit a financial institution from giving notice of or disclosing a financial record to a government authority, as defined in G.S. 53B‑2(4), to the same extent as is authorized with respect to federal government authorities in the Right to Financial Privacy Act § 1103(d), 12 U.S.C. § 3403(d). Nothing in this section shall prohibit a financial institution or its officer, employee or agent from disclosing, or require the disclosure of, the name, address, and existence of an account of any customer to a government authority that makes a written request stating the reason for the request. Nothing in this Chapter shall prohibit a financial institution or its officer, employee, or agent from notifying a government authority that the financial institution or its officer, employee, or agent has information that may be relevant to a possible violation of law or regulation.

  10. § 53B‑8 (continued)legal section • The information shall be limited to a description of the suspected illegal activity and the name or other identifying information concerning any individual, corporation, or account involved in the activity. Any financial institution or its officer, employee, or agent making a disclosure of information pursuant to this section shall not be liable to the customer under the laws and rules of the State of North Carolina or any political subdivision of the State for disclosure or for failure to notify the customer of the disclosure. (1985 (Reg. Sess., 1986), c. 1002, s. 1; 1995, c. 222, s. 2; 1998‑119, s. 3.)

  11. Undue Influence “Persuasion, pressure, or influence short of actual force, but stronger than mere advice, that so overpowers the dominated part’s free will or judgment that he or she cannot act intelligently and voluntarily, but acts, instead, subject to the will or purposes of the dominating party.” Black’s Law Dictionary

  12. UI – How Does it Work • The victim and exploiter are often in an ongoing relationship • Exploiters may target and groom their victims • Exploiters are generally subtle in their exploitation of their victims • Exploiters justify their actions through various excuses • Victims often appear as willing participants

  13. UI- California: Civil Code 1575 California Welfare & Instition Code 15610.30; (3) Takes, secrets, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtain, or retains, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code. Civil Code 1575; Undue influence consists: In the use, by one in whom a confidence is reposed by another or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; In taking an unfair advantage of another's weakness of mind; or, In taking grossly oppressive and unfair advantage of another necessities or distress.

  14. NC General Statues Pertaining to Undue Influence • Article 2 G.S. 39-11 Certain conveyances not affected by fraud if acknowledgment or privy examination regularly • Article 4A G.S. 31-11.6 How attested wills may be self-proved • Article 4 36 C-4-406 Creation of trust induced by fraud, duress, or undue influence.

  15. Senate Bill 140 • What is it and how does it apply to APS?

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