New Book: "The Law of Financial Abuse and Exploitation"

In January, 2011, Katherine C. Pearson and Trisha E. Cowart, both associated with Penn State's Dickinson School of Law, released their new book entitled The Law of Financial Abuse and Exploitation, published by Bisel, Inc.

This 382-page softcover book is described on the website of its publisher (located in Philadelphia, PA), as follows:

"An ounce of prevention is better than a pound of cure."

As the state with the third highest percentage of older adults, Pennsylvania is often the arena for financial abuse or exploitation. This timely new book presents the legal consequences of financial exploitation, both in criminal and civil terms.

By focusing on the law of exploitation, this essential guide will give those who assist older adults and dependent persons, including attorneys, courts, financial advisors, banks, social workers and families, clear guidelines for prevention of financial exploitation.

The step-by-step analysis of alternative remedies will be useful to legal advisors, whether in or outside of the Commonwealth, especially when pursuing a timely, full recovery.

Katherine provided a more personal synopsis in a letter that I received from her today, in reply to my inquiry about the new book.

While this is more than of a law book than a consumer book (and therefore has a state-specific format in our first edition), because of the regular questions that co-author Trisha and I receive about financial abuse, particularly in the context of older adults, we've tried to broaden the appeal.

We try to use "plain language" throughout the book, to make it more accessible than the traditional legal guide, while still being useful to practitioners and courts.

This is a summary of its chapters:

1. The Public and Private Challenges of Financial Abuse
2. The Role of Protective Service Authorities
3. Criminal Causes of Action
4. Civil Causes of Action 
5. Unfair Trade Practices and Consumer Protection Laws 
6. The Role of Filial Support Laws In Cases of Suspected Financial Abuse
7. Reporting Suspected Financial Abuse: Mandatory Versus Voluntary Obligations
8. The Importance of Attorneys As Counselors 
9. The Importance of The Courts

The book also includes practice forms (like complaint forms and model court pleadings) in its Appendices, a Table of Cases cited within the book, and an index to its covered subjects.

The Law of Financial Abuse and Exploitation presents a reliable, organized, and straightforward explanation -- with practical guidance born of clinical experience -- of an evolving subset of elder law in Pennsylvania.  Those who would regulate elder abuse under existing laws, those who would seek remedy in the Orphans' Court Division for financial exploitation of a elderly person by a fiduciary, or those who strive to expand or reform laws on financial exploitation of the elderly, should read this book.

Update to Probate Petition in PA

Effective December 26, 2010, the registers of wills in Pennsylvania should be considering an additional concern in the processing of the standard probate form, RW-02, the Petition for Probate and Grant of Letters.  This form has remained unchanged since instituted in 2006.  See: PA EE&F Law Blog posting New Uniform Orphans' Court Forms in PA (10/18/06).

This change was necessitated due to the passage of Senate Bill 53, PN 2228, which was signed by the Governor as Act 85 of 2010, to become effective on December 26, 2010.

The Act inserted into the Pennsylvania Probate, Estates & Fiduciaries Code new provisions that eliminates a spouse's interest in an estate if a divorce action is pending (instead of finalized, as formerly provided), and if the grounds for divorce have been established.

In an updated form, language would be added to the statements of exceptions  that would change the effect of a testamentary disposition, as follows: “and was not a party to a pending divorce proceeding at the time of death wherein grounds for divorce had been established as defined in 23 PA C.S. § 3323(g).”

The Register of Wills of Chester County, Pennsylvania, posted an updated RW-02 Form customized for that County, with the following explanation:

REVISED PETITION FOR GRANT OF LETTERS PURSUANT TO ACT 85 OF 2010

Act 85 of 2010 has made changes to the Pennsylvania Probate, Estates and Fiduciaries Code effective December 26, 2010.  These changes have necessitated the addition to the Petition for Grant of Letters of the following language:

(Newly added language is underlined)

Except as follows, Decedent did not marry, and did not have a child born or adopted after execution of the documents offered for probate; was not the victim of a killing and was never adjudicated incapacitated and was not a party to a pending divorce proceeding at the time of death wherein grounds for divorce have been established as provided in 23 Pa.C.S. section 3323(g).

These changes impact the Petition for Grant of Letters Testamentary and the Petition for Grant of Letters of Administration.  The Petition for Letters provided on this website reflects this newly added language.

At least one vendor, The Lackner Group, has included a revised RW-02 Form as a template to be printed by their proprietary software (12/14/10 software revision).

Pending wider dissemination of a revised RW-02 Form, a typed or handwritten addition to an existing form should address the additional concern, presented by the new law, at probate.

Update: 10/13/2011:

On October 11, 2011, the Pennsylvania Supreme Court approved a revision of a Form RW-02 (Petition for Grant of Letters) (PDF, 2 pages) for use in all Registers of Wills offices in the Commonwealth beginning thirty days later, on November 10, 2011. See: PA EE&F Law Blog posting Revised PA RW-02 "Petition for Grant of Letters" (10/13/11).

"The Gran' Scam of Things"

The Gran' Scam of Things (2010) is a short fictional tale beginning with an email from Osagioduwa Williamson, a Nigerian banker, addressed to a senior citizen, offering her $16,000,000 if she would respond and cooperate. 

The fanciful comedy produced on video was written and directed by Leor Baum through Rooftop Mind Productions. The Internet Movie Database lists and describes the movie ("An elderly woman opens an email that leads her into the welcoming arms of an international crime ring."), as does Vimeo. Leor created a Facebook page for viewers to follow the film, and posted some production photos on Flickr. 

I first heard about Leor's project when I received, ironically, an email message from him on October 21, 2010.  He said, in part:

My team and I have put together a comedic, light-hearted film that we hope can spread a little awareness about elder financial abuse and online safety.

I discovered your blog and after reading more of your material, I felt compelled to write to you and share what I'm doing. I hope you can take a look. * * *

I did not act until now, since I wanted to make sure that . . . well . . . that it wasn't a scam. After all, I am concerned about scams.  See: EE&F Law Blog posting Talkin' SCAMS! (01/06/11). 

Now, with those validating references on the Internet, and with the online report of its funding and production completed, I acknowledge this creative, multimedia effort to educate, in a humorous way, about senior citizen scams and financial elder abuse. 

I watched the movie trailer and read two reviews online. The reviews are favorable. See:

• The Gran Scam of Things, reviewed on Cinema-Crazed by Felix Vasquez Jr. (01/13/11): "Director Leor Baum's dramedy is a fantastic short that shows what happens when karma and fate plays a hand in an average woman becoming a hero and helping others in the journey for happiness. "The Gran Scam of Things" is a beautifully acted crowd pleaser and a socially conscious one at that."

• The Gran' Scam of Things reviewed on Rogue Cinema by Duane L. Martin (01/01/11): "So how was it? Well, to put it simply, I LOVED this film, and my wife, who watched it with me, felt exactly the same way. There's a really nice sense of innocence to this film that you don't see too often, and it was fun from start to finish. What I found probably the most hilarious though were the fantasy scenes of Osagioduwa peeking around the side of a door on a sandy beach and then emerging with this giant 16 million dollar check and a big friendly smile on his face."

Given its short length and humorous approach, yet its very timely topic, The Gran' Scam of Things should offer good "movie night" viewing, particularly for seniors and their families.

Update:  2011-01-16 (Sun) at 6:30 pm: 

Leor responded to my posting with two email messages.  Here are portions of them:

I will try to keep you up to date as we apply to the film festivals and try to get this film seen by a wider audience. It would be nice to get a screening in PA someday down the line. * * *

I'll look into the PA festivals and if we can afford it, we will submit. It all depends on how much we can raise by the deadlines. Following the Kickstarter campaign, we've been offering gifts for anyone who helps us submit to the festivals: www.rooftopmind.com/donate.

If your readers want to contact me about the film, they can write to gsot@rooftopmind.com.

The official website is www.rooftopmind.com/gran-scam if anyone wants to see more.

Reports about IT: Social Security Collapse?

Whether the Social Security Trust Fund can remain financially viable is the subject of much study and debate, currently reported.  For example, see:

• Americans Have Every Reason to Doubt Social Security Solvency (04/21/10) posted by The Heritage Foundation

• Report -- Social Security Modernization: Options to Address Solvency and Benefit Adequacy (05/13/10; 89 pages, PDF), posted by the U.S. Senate's Special Committee on Aging

• 2010 Social Security Trustee’s Report (08/05/10; 243 pages, PDF), posted by the Social Security Administration

• Useless: The Social Security trust fund (08/10/10) by Allan Sloan, posted by Fortune on CNN Money.

• CRS looks at solvency status of Social Security trust funds (10/12/10), posted by CCH

• The Social Security Trust Fund Accounting Trick (12/23/10) posted on the PrawfsBlogs

• Proposals Addressing Trust Fund Solvency (updated 01/06/11) posted by the SSA, listing eight memoranda studying many of the proposals and options that address the projected exhaustion of the Social Security Trust Fund, between 2037 and 2041, under the intermediate set of economic and demographic assumptions provided in each of the five prior annual Trustees' reports. 

A lesser known, but perhaps more immediate problem, was identified by government officials, and reported recently by geeks and techies.

The information hardware facilities and software capabilities of the Social Security Administration are reported to be inadequate to handle the biggest database in the world.

In Social Security Data Center Approaching Collapse (01/03/11), published by InformationWeek - Government, reporter Elizabeth Montalban highlighted that "an inspector general finds agency operations at high risk due to delays in upgrading its critical infrastructure and software."

A report by SSA IG Patrick P. O'Carroll Jr., examining the top management challenges the agency will face in 2011, shows it grappling with a host of IT infrastructure projects the agency's IG, Congress, and the SSA's advisory board worry it can't handle.

One of the biggest problems is the agency's transition to a new data center, according to the report. The IG has characterized the replacement of the SSA's National Computer Center (NCC) -- built in 1979 -- as the SSA's "primary IT investment" in the next few years.

The agency has received more than $500 million so far to replace the outdated center, which is now so severely strained by an expanded workload over its time of operation that it may not be able to function by 2012, according to the report.

However, the SSA does not foresee completing the new center until 2015, a project the IG deems as "imperative" considering the precarious position of the existing NCC. * * *

This IT crisis comes just as the SSA intends to computerize even more aspects of its functions, hoping to achieve operating cost savings and improve customer service.  See:  Social Security CIO On What's Next In Online Engagement (01/06/11) by J. Nicholas Hoover, also posted by InformationWeek, reporting that "social media, digital credentials, and behavior modeling are being employed to get more Americans to use the Web to get their retirement benefits, says IT chief Frank Baitman."

Both these actuarial and technological challenges must be addressed -- and soon -- to avoid collapse of a system central to most Americans.

"The Social Security program plays an important part

in providing for families, children, and older persons in times of stress.

But it cannot remain static.

Changes in our population, in our working habits, and in our standard of living

require constant revision."
-- John F. Kennedy (June 30, 1961)

Talkin' SCAMS!

Radio SmartTalk's broadcast on Thursday, January 6, 2011, over WITF-FM Radio (Harrisburg, PA), addressed the topic of scams -- over phone, by mail, through email, and on the Web -- in its program entitled Scams:

You know those e-mails from that Nigerian prince, who just needs your bank account number so he can send you his money? Or the voice mail message from a company that wants to give you a free vacation, if only you'll give them your social security number? Or the contest you just won (that you swear you never entered) for which all you need to do is send a small cash payment to claim your prize?

Scams are everywhere – and while some may be obvious, others are not. And that, according to U.S. Postal Inspector Louis DiRienzo, is because the scammers themselves are becoming increasingly sophisticated.

We'll discuss common scams, from mail fraud to online scams to phone solicitations. We'll welcome any examples you have, and along the way, we'll try to identify some red flags that may signal to you that the next great opportunity to come your way may be nothing of the sort.

There was mention about the susceptibility of senior citizens to fall prey to scammers.  If a senior has a trusting nature, available assets, changed or limited interaction with family, and heavy reliance upon benefit programs, then that person is a perfect target for a scammer.

I recognized many scams identified by the guest during the program.  Most of them are listed on the FBI's web page on Common Fraud Scams.  See also: Don't Get Scammed! Scams and Cons That Target Seniors, which was referenced by a Seniors for Living posting entitled Watch Out for Senior Scams (10/08/10).

Pennsylvania's Attorney General Tom Corbett (soon to be Governor) for years has educated and warned about scams affecting senior citizens.  See: PA EE&F Law Blog postings "Senior Crime Prevention University" Session (05/12/2008), and PA AG Speaks to Seniors about Scams (09/22/06).

Is education -- whether by a radio program or in seminars held by officials -- enough to stop such senior scams?  

According to recent published articles, senior scams are rising while other forms of crime decline.  See:  Nationwide, scams against senior citizens are on the rise, (07/28/10), by Dan Morse, published originally by The Washington Post, which concluded:  "Murders and violent crimes are down nationwide, but one kind of crime is rising steadily: scams against the elderly." 

And so it should not be a surprise that federal legislation was introduced on September 29, 2010, to address one area of senior scams -- affinity scams. 

H.R. 6305, which proposed the Preventing Affinity Scams for Seniors Act of 2010, or PASS Act of 2010, was summarized as follows:

• Defines "affinity scam" as a transaction in which a person trusted by a senior, such as a caregiver, relative, guardian, "new friend," or service provider, claims to share similar interests or values and establishes a relationship with the senior, then uses the relationship to defraud the senior.

• Requires each financial institution to:

1. educate its staff about affinity scams and how to identify transactions that may be part of an affinity scam; 
2. train staff members on educating seniors about affinity scams;
3. provide senior depositors with educational materials on how to identify affinity scams; and
4. offer seniors a "senior protection (checking) account." 

• Directs the Bureau of Consumer Financial Protection to:

1. issue implementing regulations; and
2. audit financial institutions periodically to ensure compliance with them. 

• Sets forth senior protection account requirements, including protective measures to block and investigate transactions suspected of being an affinity scam.

• Instructs the Secretary of the Treasury to establish an income tax deduction of .77% of the average of the amount of deposits held by a financial institution in senior protection accounts.

• Subjects a noncompliant financial institution to a civil liability with respect to a senior who has sustained actual damage as a result of the institution's failure to comply with this Act.

• Directs the Secretary to require each financial institution, and each of its directors, officers, employees, or agents, to report any suspicious transaction relevant to a possible affinity scam.

Hopefully in the new session of Congress, similar legislation can be introduced and considered.

For now, you can listen online to the recent broadcast on Scams.

"Let this be a warning to others out there.
It can happen to anyone, anywhere. Beware!"

 Anonymous Commentor on SmartTalk website

(Graphic Source)