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Know The Law: Obligation to Report Elderly Financial Exploitation?

Written by: Scott H. Harris

Published in the Union Leader:

Q: I work as a physician's assistant and a longtime patient, now 85 years old, presents with depression. She confided in me that she is getting nightly calls from bill collectors threatening to take action against her for non-payment. She tells me she had over a million dollars in her retirement account when she turned it over to her son to manage six years ago. Now he is telling her there’s not enough to cover the bills and she is going to have to sell the home she’s lived in for the past fifty years. She thinks she gave her son some kind of power of attorney. While her mental acuity seems fine, I wonder whether I have any obligation to report what I’ve learned?

A: Last estimated in 2010, annual losses to the elderly caused by financial exploitation were in the vicinity of $2.9 billion. This is a devastating (and, sadly growing) problem, and medical professionals and caregivers are often in the best position to help protect against it. The law therefore requires healthcare workers to report to the New Hampshire Department of Health and Human Services if they know or suspect abuse, neglect or exploitation of an “incapacitated” adult. The reporter must follow-up their oral report with a written report, if so requested.

The first question in deciding the duty to report is whether your patient is incapacitated. “Incapacitated,” under the law, means the individual is unable to act in her own best interests, a circumstance that can be emotionally based.  A good argument can be made that your patient is emotionally unable to confront her son about his management (or mismanagement) of her finances, so that she cannot act in her own best interests to recover control of her finances. You might confirm this emotional incapacity by inquiring about what conversations, if any, she has had with her son about these problems. If she has asked for little or nothing, you should find out why that is.

The next question is whether these facts amount to abuse or exploitation. There are a number of red flags that suggest that is the case, especially since it appears that your patient’s assets have been misapplied causing her emotional distress as a consequence. You should ask for additional details that may be helpful to the authorities in investigating and assisting you patient in recovering control of her finances, like the names of any financial institutions involved and whether she has ever worked with an independent financial person like an accountant or other advisor.

In deciding whether to report, consider that anyone who knowingly fails to make a required report can be found guilty of a misdemeanor. On the other hand, if you report, you will be immune from any liability that might otherwise result so long as the report is in good faith. 
Scott Harris can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law.  Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to [email protected].  Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

 

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