The 2017 legislative session saw passage of three major bills to combat financial exploitation of Tennesseans who are elderly or have diminished capacity. Approximately one in five seniors has been a victim of financial exploitation at a cost of approximately $2.9 billion annually. Moreover, these numbers are likely low as it is also estimated that only one out of every 44 instances of financial abuse is actually reported.
Elderly Abuse / Financial Exploitation / Securities — The trilogy includes the “Senior Financial Protection and Securities Modernization Act” which provides a pathway for voluntary reporting. It gives civil and administrative immunity to broker-dealers, investment advisers, agents, representatives and other qualified individuals for reporting the suspected abuse or exploitation. It also allows those individuals to delay disbursements for a certain number of days if financial abuse or exploitation is suspected and authorizes notification to third parties previously designated by the elderly or vulnerable adult regarding any suspected fraudulent transactions. In addition, the new law gives the Commissioner of the Department of Commerce and Insurance authority, under the state’s Uniform Administrative Procedures Act, to double current civil penalties against an offender who victimizes a vulnerable or senior adult.
Senate Bill 1192 / by Norris, Gardenhire, Crowe, Bowling, Niceley, Roberts, Stevens / Status: Signed into law on May 18.
Elderly Abuse / Financial Exploitation / Financial Institutions – Likewise, legislation was passed this year which gives financial institutions, like banks and credit untions, tools and greater flexibility as to how they can best protect their customers when there is reason to suspect financial exploitation of elderly or vulnerable adults is occurring or being attempted. This new law provides new authority for financial institutions to delay or refuse to conduct transactions which permit the disbursement of funds when exploitation is suspected. It also permits the financial institution to establish a list of persons the customer would like to have contacted if the bank suspects the customer is a victim of exploitation or theft. In addition, it requires the Tennessee Department of Financial Institutions to consult with financial service providers, the Tennessee Commission on Aging and Disability, and the Department of Human Services to develop a public education campaign to alert the public to dangers of vulnerable adults from financial exploitation.
It has been estimated that 41.4 percent of the offenses of financial exploitation were committed by a family member and another 13.3 percent of victims were described by law enforcement as having close relationships with the perpetrator.
Senate Bill 1267 / by Norris, Crowe, Massey, Bowling, McNally, Harper, Ketron, Kyle, Niceley, Overbey, Roberts, Stevens, Tate, Tracy, Watson, Yarbro / Status: PC 264 / Effective Date: July 1, 2017. Section 1 shall be repealed on June 30, 2022.
Elderly Abuse / Financial Exploitation / Classification Higher — The third bill passed this year is the linchpin of the legislative package. The “Elderly and Vulnerable Adult Protection Act” defines and creates the new offense of financial exploitation of elderly or vulnerable adults, including the use of deception, intimidation, undue influence, force, or threat of force to obtain or exert unauthorized control over an elderly or vulnerable adult’s property with intent to deprive them of it. Under the new law, such acts of exploitation would be punished one classification higher than the theft offense of the same value. If charged, a court may freeze assets of the offender up to 100 percent of the alleged value in question. The new statute also requires those convicted be included on the state Elder Abuse Registry.
In addition, the new law includes a provision that requires a court to hold a hearing to preserve the testimony of elderly or vulnerable adult victims. This is a critical new tool for prosecutors to use when defendants attempt to delay trial in order to have the victim continue to deteriorate or even pass away.
Senate Bill 1230 /by Norris, Crowe, McNally, Bailey, Gardenhire, Harper, Hensley, Kyle, Massey, Stevens, Tate, Tracy / Status: Signed by House Speaker
Public Guardians / Elderly and Disabled – Finally, the General Assembly passed legislation which establishes a Public Guardian Working Group led by the Commission on Aging and Disability to review Tennessee’s public guardianship for the elderly program and make recommendations on how the public guardianship program can be more effective. The measure also clarifies that background checks on employees or volunteers who come into direct contact with service recipients should be done and provides immunity for lawsuit for any licensed nursing home facility that declines employment to someone based on that background check.
Senate Bill 1287 / by Crowe, Norris / Status: Signed by Gov. May 18
Elder Abuse / Elder Exploitation— Several new laws were approved this session to tackle the growing problem of elder abuse in Tennessee, including legislation stemming from recommendations of the General Assembly’s Elder Abuse Task Force. The task force was formed two years ago to study Tennessee’s current system for protecting, preventing and prosecuting crimes of abuse for its older and more vulnerable adults. This includes legislation to keep the state’s elderly safe by setting up checks on the people who are working in direct contact with vulnerable adults in home healthcare and hospice.
The new law lays out requirements that must be met before an employee may be hired. Applicants must supply fingerprint samples, submit to a background check and provide past references. These requirements apply to third party vendors that have direct contact with the patients.
Senate Bill 1848 by Gardenhire, Crowe, Niceley, Norris / Status: Public Chapter 1044 / Effective Date: Sections 4 (background checks) and 8 takes effect on July 1, 2016 with the remaining sections becoming effective upon becoming law on April 28, 2015
Financial Exploitation — Following another recommendation of the task force, a resolution was passed to address financial exploitation of vulnerable adults. The measure resolves that the Tennessee Commission on Aging and Disability will work with the Tennessee Bankers Association, the Tennessee Credit Union League and other appropriate organizations to develop a list of recommended changes to current law that would assist financial institutions in protecting vulnerable adults from fraudulent and other questionable transactions.
Senate Joint Resolution 678 by Crowe / Status: Signed by the Governor on May 12, 2016
Vulnerable Adult Protective Investigation Teams — The General Assembly passed a law to create a Vulnerable Adult Protective Investigation Teams (VAPIT) in each judicial district in Tennessee. The purpose of the measure is to coordinate the investigation of suspected instances of abuse, neglect or exploitation of an adult. The information generated by the multi-disciplinary adult protective services team can then be reviewed to determine what further action can be taken to protect these citizens.
One study estimated that only 1 in 14 cases of elder abuse ever come to the attention of authorities.
Conservators / Wards – State lawmakers approved a new law this year to restrict the ability of a conservator to isolate their ward from visitation by family members or loved ones without just cause. A conservator is a legally appointed guardian of a disabled person. Under previous law, a conservator could restrict visitation and communication with the ward in Tennessee without going to court, even when it involves communication or visits by a family member. Due to the growing number of divorces, this became a problem when there is conflict between children of an incapacitated adult whose spouse has been named the conservator.
The new law provides the ward has a right to visit, communicate or interact with family and loved ones and that a conservator shall not restrict it unless specifically authorized by a court order. It also provides a process by which the conservator can petition the court to place restrictions upon communication or interaction by showing good cause. Some of the factors the court can consider are previous protective orders, whether the ward expresses the wish to visit and past preferences.