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Protecting Vulnerable Adults U of M Poverty law 11/26/13. Topics Doing Poverty Law Today: Funding and Fellowships, Skill Building, New Models Elder Abuse and Financial Exploitation Issues in Disability Law and Advocacy: The integration mandate of Olmstead. A Poverty Law Practitioner.

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protecting vulnerable adults u of m poverty law 11 26 13
Protecting Vulnerable Adults U of M Poverty law 11/26/13

Topics

Doing Poverty Law Today: Funding and Fellowships, Skill Building, New Models

Elder Abuse and Financial Exploitation

Issues in Disability Law and Advocacy: The integration mandate of Olmstead

a poverty law practitioner
A Poverty Law Practitioner

Required Skills

*Cultural Competence

*Individual Client Advocacy

*Structural Advocacy: Legislative and Administrative Policy; Targeted Litigation

*Outreach and Education

*Sustainability:

-Fellowships and Jobs

-New Models: Low Bono; Practice Areas (elder law, consumer law, others…)

financial exploitation a form of elder abuse

Financial Exploitation:A Form of Elder Abuse

“our response to elder abuse lags 40 years behind child abuse and 20 years behind domestic violence”

-M.T. Connelly

MACRTHUR Genius Grant Fellow and Elder Abuse Advocate

an growing population of seniors
An Growing Population of Seniors

Between 1995 and 2025, the

proportion of Minnesota’s elderly who are nonwhite will increase from 3.7% to 9.8%

Between 2000 and 2030, the 65 and over

population will increase from 12.1 percent to 24 percent of the total state population (or about one in every four Minnesotans).

That equals a doubling of the older population from 600,000 to 1.2 million.

an doubling population of seniors
An Doubling Population of Seniors

In the next 20 years…

Age of Minnesota Residents

nearly 2 75 billion lost per year
Nearly 2.75 Billion Lost Per Year…

2 Main Types of Financial Exploitation

Both provide a “New Frontier” for Pro-Bono work and Poverty Law

  • Familial Exploitation
  • Similar to Family Law
    • Emotionally Charged Disputes (maltreatment, fights over money, many non-legal issues at play
  • Need for Private attorneys and pro bono work
  • Bar needs to continue to create creative strategies
  • Representative Case:
  • State v. Campbell
  • Third Party Practices
  • Similar to Consumer Protection Law
  • Bar needs to develop already existing laws and statutes
  • Continued mix of legal services | pro-bono | low bono | and fee generating cases for private bar
  • Representative Case:
  • State of Minnesota v. American Family
  • Prepaid Legal Corporation et al.
nearly 2 75 billion lost per year1
Nearly 2.75 Billion Lost Per Year…
  • State of Minnesota v. American Family
  • Prepaid Legal Corporation et al. A11-1848
  • Approx. 7 Million Awarded to the State for multiple violations of state consumer protection statutes
  • Court focused on the Business-Model of the two interrelated companies and tactics used by different sales-representatives
  • Tactics encouraged and taught in the Employee Handbook:
    • Isolate and pressure to make a decision that day – without input from others
    • Gain trust | always sit at kitchen table | always assume a sale and don’t allow time for consideration
    • “You do not (and should not) say anything. Not even one word. Just start filling out the application…To be truly successful…at some moments you have to have the courage to just fill out the application”
third party practices
Third Party Practices

Civil Laws – Deceptive Acts against Seniors and Disabled Persons

Minn. Stat. § 325F. 71 SENIOR CITIZENS AND DISABLED PERSONS; ADDITIONAL CIVIL PENALTY FOR DECEPTIVE ACTS.

Subd. 4. Private remedies.

A person injured by a violation of this section may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court.

Violation of this section means:

Deceptive Trade Practices Act (Minn. Stat. § 325D.43 to 325D.48)

Consumer Fraud Act (Minn. Stat. § 325F.68 to 325F.70)

False Advertising Act (Minn. Stat. § 325F.67)

third party practices1
Third Party Practices

Civil Laws – Deceptive Acts against Seniors and Disabled Persons

Minn. Stat. § 325F. 71 SENIOR CITIZENS AND DISABLED PERSONS; ADDITIONAL CIVIL PENALTY FOR DECEPTIVE ACTS.

Un-Tested Legal Terrain

* Intersection of 325F.71 subd. 4 with the Public benefit test announced in Ly v. Nystrom 615 N.W.2d 302 (Minn. 2000)

protection and prevention in minnesota
Protection and Prevention in Minnesota

Civil Laws – Vulnerable Adult Private Right of Action

Another way around Ly v. Nystrom…

The plaintiff must be a Vulnerable Adult as defined in 626.5572 subd. 21

Minn. Stat. 626.557 subd. 20

Cause of action for financial exploitation; damages

protection and prevention in minnesota1
Protection and Prevention in Minnesota

Civil Laws

Financial Exploitation – 626.5572 subd. 9

(b) In the absence of legal authority a person:

willfully uses, withholds, or disposes of funds or property of a vulnerable adult;

obtains for the actor or another the performance of services by a third person for the wrongful profit or advantage of the actor or another to the detriment of the vulnerable adult;

acquires possession or control of, or an interest in, funds or property of a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud; or

forces, compels, coerces, or entices a vulnerable adult against the vulnerable adult's will to perform services for the profit or advantage of another.

Minn. Stat. 626.557 subd. 20

Cause of action for financial exploitation; damages

protection and prevention in minnesota2
Protection and Prevention in Minnesota

Civil Laws -

Civil Laws – Vulnerable Adult Private Right of Action

  • Lots of opportunity for growth but need for collaboration because law is extremely unpredictable
  • Use in traditional legal services and other plaintiff’s litigation (Landlord/Tenant; Consumer Protection; Care-Facility Litigation)
  • Use as a check on under-regulated industries that allow individual businesses to prey on vulnerabilities

?

Financial Schemes

Medical Device and Services

Gold and Coins

nearly 2 75 billion lost per year2
Nearly 2.75 Billion Lost Per Year…

2 Main Types of Financial Exploitation

Both provide a “New Frontier” for Pro-Bono work

  • Familial Exploitation
  • Similar to Family Law
    • Emotionally Charged Disputes (maltreatment, fights over money, many non-legal issues at play
  • Need for Private attorneys and pro bono work
  • Bar needs to continue to create creative strategies
  • Representative Case:
  • State v. Campbell
  • Third Party Practices
  • Similar to Consumer Protection Law
  • Bar needs to develop already existing laws and statutes
  • Continued mix of legal services | pro-bono | low bono | and fee generating cases for private bar
  • Representative Case:
  • State of Minnesota v. American Family
  • Prepaid Legal Corporation et al.
nearly 2 75 billion lost per year3
Nearly 2.75 Billion Lost Per Year…
  • State v. Campbell
  • 756 N.W.2d 263 (Minn. App. 2008)
  • 2 Brothers - Good Cop v. Bad Cop with Mom in the Middle
  • Characteristics of a Familial Exploitation Case
    • Diminishing capacity of the Senior and accompanying difficult behaviors
    • Bad Cop son Abuse of Power of Attorney
    • Estate Planning attorneys at center of the storm
    • Classic defenses: “It was gifted / she consented”
  • Some Important Legal Precedent
    • Criminal Vulnerable Adult Financial Exploitation Statute is not unconstitutionally vague
    • Fiduciary duty arises in context of joint bank account holders
recognizing fiduciary family abuse
Recognizing Fiduciary/Family Abuse

Some studies show upwards of 70% of financial exploitation comes from someone the Senior knows and trusts

Friends

Family

Neighbor

“Drifters”

Professional: Real Estate, Finance, Guardian,

Conservator

protection and prevention in minnesota3
Protection and Prevention in Minnesota

Civil Laws

Financial Exploitation – 626.5572 subd. 9

In breach of a Fiduciary obligationrecognized elsewhere in law, including pertinent regulations, contractual obligations, documented consent by a competent person, or the obligations of a responsible party under section 144.6501, a person:

engages in unauthorized expenditure of funds entrusted to the actor by the vulnerable adult which results or is likely to result in detriment to the vulnerable adult; or

fails to use the financial resources of the vulnerable adult to provide food, clothing, shelter, health care, therapeutic conduct or supervision for the vulnerable adult, and the failure results or is likely to result in detriment to the vulnerable adult.

Minn. Stat. 626.557 subd. 20

Cause of action for financial exploitation; damages

protection and prevention in minnesota4
Protection and Prevention in Minnesota
  • Other Civil Remedies for Collateral Consequences of the Exploitation
  • Probate and Estate services
  • Landlord tenant | Eviction
  • Orders for Protection
  • Mediations
  • ProJusticeMNhttp://www.projusticemn.org/
  • **Growing referral network for cases**
  • Growing resource library for expanding resources and this area (and all legal services and pro bono areas of law)
  • Create an account to access materials and browse potential pro bono cases
  • LawHelpMNhttp://www.lawhelpmn.org/
  • Designed for the community at large to access
  • Basic fact sheets
  • A great place to start for Pro Bono attorney for context in an area of “poverty law”
prevention practices
Prevention Practices

Baseline Screening:

A “Typical” Senior Budget