Interagency Guidance on Privacy Laws and Reporting Financial Abuse of Older Adults

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1 Bard f Gvernrs f the Federal Reserve System Cmmdity Futures Trading Cmmissin Cnsumer Financial Prtectin Bureau Federal Depsit Insurance Crpratin Federal Trade Cmmissin Natinal Credit Unin Administratin Office f the Cmptrller f the Currency Securities and Exchange Cmmissin Interagency Guidance n Privacy Laws and Reprting Financial Abuse f Older Adults PURPOSE The Bard f Gvernrs f the Federal Reserve System (Federal Reserve), Cmmdity Futures Trading Cmmissin (CFTC), 1 Cnsumer Financial Prtectin Bureau (CFPB), Federal Depsit Insurance Crpratin (FDIC), Federal Trade Cmmissin (FTC), Natinal Credit Unin Administratin (NCUA), Office f the Cmptrller f the Currency (OCC), and Securities and Exchange Cmmissin (SEC) are issuing this guidance t financial institutins t clarify the applicability f privacy prvisins f the Gramm-Leach-Bliley Act (GLBA) t reprting suspected financial explitatin f lder adults. Emplyees f depsitry institutins and ther financial service prviders that cnstitute financial institutins fr purpses f the GLBA may bserve signs f pssible financial explitatin f an lder adult. Varius federal and state authrities either require r encurage reprting f this type f infrmatin t the apprpriate agency. This guidance clarifies that reprting suspected financial abuse f lder adults t apprpriate lcal, state, r federal agencies des nt, in general, vilate the privacy prvisins f the GLBA r its implementing regulatins. 2 In fact, specific privacy prvisins f the GLBA and its implementing regulatins permit the sharing f this type f infrmatin under apprpriate circumstances withut cmplying with ntice and pt-ut requirements. 3 1 The CFTC is issuing this dcument as staff guidance. 2 While this guidance discusses when reprting is allwed under the GLBA, it des nt address any ther federal r state laws that may regulate such reprting. Als, the guidance des nt specifically address risk management expectatins fr financial institutins related t the reprting f elder abuse. 3 This guidance s analysis f the GLBA s privacy prvisins builds n jint guidance issued by several federal agencies in 2002 that specifically addressed disclsures t the Michigan Family Independence Agency. See Letter t Hn. Debbie Stabenw, July 3, 2002, available at checkdam.pdf.

2 2 BACKGROUND Elder abuse includes the illegal r imprper use f an lder adult s funds, prperty, r assets. 4 Recent studies suggest that financial explitatin is the mst cmmn frm f elder abuse and that nly a small fractin f incidents are reprted. 5 Older adults can becme targets f financial explitatin by family members, caregivers, scam artists, financial advisers, hme repair cntractrs, fiduciaries (such as agents under pwer f attrney and guardians), and thers. Older adults are attractive targets because they may have significant assets r equity in their hmes. They may be especially vulnerable due t islatin, cgnitive decline, physical disability, health prblems, and/r the recent lss f a partner, family member, r friend. Financial institutins can play a key rle in preventing and detecting elder financial explitatin. A financial institutin s familiarity with lder adults it encunters may enable it t spt irregular transactins, accunt activity, r behavir. 6 Prmpt reprting f suspected financial explitatin t adult prtective services, law enfrcement, 7 and/r lng-term care mbudsmen 8 can trigger apprpriate interventin, preventin f financial lsses, and ther remedies. 4 See the Natinal Center n Elder Abuse definitins available at The Older Americans Act, as amended by the Elder Justice Act f 2009, defines explitatin as the fraudulent r therwise illegal, unauthrized, r imprper act r prcess f an individual, including a caregiver r fiduciary, that uses the resurces f an elder fr mnetary r persnal benefit, prfit, r gain, r that results in depriving an elder f rightful access t, r use f, benefits, resurces, belngings, r assets. 42 U.S.C. 1397j(8). 5 Aciern, R., M. A. Hernandez, A. B. Amstadter, H. S. Resnick, K. Steve, W. Muzzy, and D. G. Kilpatrick, Prevalence and Crrelates f Emtinal, Physical, Sexual and Financial Abuse and Ptential Neglect in the United States: The Natinal Elder Mistreatment Study, American Jurnal f Public Health 100(2): ; Lifespan f Greater Rchester, Inc., et al., Under the Radar: New Yrk State Elder Abuse Preventin Study, (Rchester, NY: Lifespan f Greater Rchester, Inc., May 2011). 6 Treasury Department rules require recipients f federal nntax payments t receive payment by electrnic funds transfer, with an allwance fr certain waivers frm the requirement. The rule applies t recipients f Scial Security, Veterans Affairs, Supplemental Security Incme, Railrad Retirement Bard, Department f Labr, and Office f Persnnel Management benefit payments. Benefit recipients may have payments directly depsited t an accunt at a financial institutin r t a Direct Express debit card accunt. See 75 Fed. Reg (Dec. 22, 2010). Financial institutins shuld be mindful that this change may result in additinal electrnic funds transfer activity invlving the accunts f lder adults. 7 Financial institutins file Suspicius Activity Reprts with the Financial Crimes Enfrcement Netwrk (FinCEN), a Bureau f the U.S. Department f the Treasury, invlving mney laundering and terrrist financing as well as activities related t elder abuse and ther cnsumer fraud. The reprts assist law enfrcement in identifying individuals and rganizatins invlved in financial crime. See FinCEN, Advisry t Financial Institutins n Filing Suspicius Activity Reprts Regarding Elder Financial Explitatin, FIN-2011-A003 (Feb. 22, 2011), available at 8 Lng-Term Care Ombudsmen are advcates fr residents f nursing hmes, bard and care hmes, assisted living facilities and similar adult care facilities. Under the federal Older Americans Act, each state has an Office f the State Lng-Term Care Ombudsman that addresses cmplaints and advcates fr imprvements in the lng-term care system. Lcal mbudsman staff and vlunteers wrk t reslve prblems f individual residents. Fr mre infrmatin, see T find yur lcal mbudsman prgram, search by lcatin at

3 3 DISCUSSION OF PRIVACY PROTECTIONS The GLBA establishes a general rule that a financial institutin may nt disclse any nnpublic persnal infrmatin abut a cnsumer t any nnaffiliated third party unless the financial institutin first prvides the cnsumer with a ntice that describes the disclsure (as well as ther aspects f its privacy plicies and practices) and a reasnable pprtunity t pt ut f the disclsure, and the cnsumer des nt pt ut. Hwever, sectin 502(e) f the GLBA prvides a variety f exceptins t this general rule that permit a financial institutin t disclse infrmatin t nnaffiliated third parties withut first cmplying with ntice and pt-ut requirements. Generally, disclsure f nnpublic persnal infrmatin abut cnsumers t lcal, state, r federal agencies fr the purpse f reprting suspected financial abuse f lder adults will fall within ne r mre f the exceptins. 9 These disclsures f infrmatin may be made either at the agency s request r n the financial institutin s initiative. The fllwing are specific exceptins t the GLBA s ntice and pt-ut requirement that, t the extent applicable, wuld permit sharing f nnpublic persnal infrmatin abut cnsumers with lcal, state, r federal agencies fr the purpse f reprting suspected financial abuse f lder adults withut the cnsumer s authrizatin and withut vilating the GLBA: A financial institutin may disclse nnpublic persnal infrmatin t cmply with federal, state, r lcal laws, rules and ther applicable legal requirements, such as state laws that require reprting by financial institutins f suspected abuse. (15 U.S.C. 6802(e)(8) and implementing regulatins at.15(a)(7)(i)). 10 A financial institutin may disclse nnpublic persnal infrmatin t respnd t a prperly authrized civil, criminal, r regulatry investigatin, r subpena r summns by federal, state, r lcal authrities r t respnd t judicial prcess r gvernment regulatry authrities having jurisdictin fr examinatin, cmpliance, r ther purpses as authrized by law. (15 U.S.C. 6802(e)(8) and implementing regulatins at.15(a)(7)(ii)-(iii)). A financial institutin may disclse nnpublic persnal infrmatin t prtect against r prevent actual r ptential fraud, unauthrized transactins, claims, r ther liability. (15 U.S.C. 6802(e)(3)(B) and implementing regulatins at.15(a)(2)(ii)). Fr example, this exceptin generally wuld allw a financial institutin t disclse t apprpriate authrities nnpublic persnal infrmatin in rder t: reprt incidents that result in taking an lder adult s funds withut actual cnsent, r reprt incidents f btaining an lder adult s cnsent t sign ver assets thrugh misrepresentatin f the intent f the transactin. 9 See Sectin 502(e) f the GLBA (15 U.S.C. 6802(e)). 10 The CFPB s, FTC s, CFTC s, and SEC s implementing regulatins are cntained in 12 CFR part 1016, 16 CFR part 313, 17 CFR part 160, and 17 CFR part 248, respectively. Fr ease f reference, this discussin uses the shared numerical suffix f each f these agencies regulatins.

4 4 T the extent specifically permitted r required under ther prvisins f law and in accrdance with the Right t Financial Privacy Act f 1978 (12 U.S.C et seq.), a financial institutin may disclse nnpublic persnal infrmatin t law enfrcement agencies (including the CFPB, the federal functinal regulatrs, and the FTC), selfregulatry rganizatins, r fr an investigatin n a matter related t public safety. (15 U.S.C. 6802(e)(5) and implementing regulatins at.15(a)(4)). In additin, a financial institutin may disclse nnpublic persnal infrmatin with the cnsumer s cnsent r cnsent f the cnsumer s legal representative. (15 U.S.C. 6802(e)(2) and implementing regulatins at.15(a)(1)). POSSIBLE SIGNS OF FINANCIAL ABUSE OF OLDER ADULTS The Department f the Treasury s Financial Crimes Enfrcement Netwrk (FinCEN) published an advisry in February 2011 that describes ptential signs f elder financial explitatin that might trigger the filing f a Suspicius Activity Reprt (SAR). 11 As described in the advisry, amng the pssible signs f abuse are: Erratic r unusual banking transactins, r changes in banking patterns: Frequent large withdrawals, including daily maximum currency withdrawals frm an ATM; Sudden nn-sufficient fund activity; Uncharacteristic nnpayment fr services, which may indicate a lss f funds r access t funds; Debit transactins that are incnsistent fr the lder adult; Uncharacteristic attempts t wire large sums f mney; r Clsing f CDs r accunts withut regard t penalties. Interactins with lder adults r caregivers: 12 A caregiver r ther individual shws excessive interest in the lder adult's finances r assets, des nt allw the lder adult t speak fr himself, r is reluctant t leave the lder adult's side during cnversatins; The lder adult shws an unusual degree f fear r submissiveness tward a caregiver, r expresses a fear f evictin r nursing hme placement if mney is nt given t a caretaker; The financial institutin is unable t speak directly with the lder adult, despite repeated attempts t cntact him r her; A new caretaker, relative, r friend suddenly begins cnducting financial transactins n behalf f the lder adult withut prper dcumentatin; 11 See ftnte 6 abve. 12 References t caregiver r caretaker als may apply t ther individuals wh may be invlved in transactins f the type described in the FinCEN advisry.

5 5 The lder adult mves away frm existing relatinships and tward new assciatins with ther friends r strangers; The lder adult's financial management changes suddenly, such as thrugh a change f pwer f attrney t a different family member r a new individual; r The lder adult lacks knwledge abut his r her financial status, r shws a sudden reluctance t discuss financial matters. Further infrmatin abut the use f Suspicius Activity Reprts t reprt suspected elder financial explitatin is available in FinCEN s The SAR Activity Review published in May In additin, if financial institutins r ther rganizatins are interested in raising public awareness amng lder adults and their caregivers abut preventing, identifying, and respnding t elder financial explitatin, Mney Smart fr Older Adults, a financial resurce tl, serves as a helpful surce f training and infrmatin See The SAR Activity Review: Trends Tips & Issues, Issue 23, May 2013, available at 14 Mney Smart fr Older Adults (June 2013), available at r

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