Financial exploitation of vulnerable adults is an endemic in our society today and it is becoming increasingly common to hear allegations of deception, intimidation, and undue influence to defraud vulnerable adults of their property. According to the National Council on Aging, up to five (5) million older Americans are abused every year, and the annual loss by victims of financial abuse is estimated to be at least $36.5 billion. In fact, many have characterized financial elder abuse as the silent crime of the 21st century. In response to this vulnerable population, Maryland enacted the Maryland’s Project SAFE (Stop Adult Financial Exploitation) Act through the most recent legislative session.
The Maryland SAFE Act evolved after countless hours, discussion and drafting by the Vulnerable Adult Exploitation Joint Task Force. Prior to the SAFE Act, remedies for financial exploitation were mostly limited to criminal actions which had proven to be largely ineffective for several reasons. First, most victims are reluctant to involve law enforcement in family matters. Secondly, there is a very high burden of proof necessary to obtain a criminal conviction. As such, the Task Force determined that a civil cause of action would be a more effective remedy to try and curb financial abuse.
The Maryland SAFE Act codifies existing Maryland law by creating a statutory cause of action for financial exploitation. The Act provides remedies that include allowing the victim to be awarded treble damages, attorney’s fees, and equitable relief, in addition to recovering the value of the loss. The Act provides that a “susceptible adult” may bring a cause of action against a person who has committed financial exploitation against the susceptible adult to recover damages and obtain other appropriate relief. A “susceptible adult” under the Act is defined by any adult who is “unable to perform, without prompting or assistance, one or more activities of daily living, is unable to protect the adult’s rights, or has diminished executive functioning, due to advanced age, mental, emotional, sensory or physical disability, impaired mobility, habitual drunkenness, addiction to drugs or hospitalization.” The Act also defines an older adult as an “individual who is at least 68 years of age.”
So what does Maryland law define as “financial exploitation?” The SAFE Act contains broad definitions of financial exploitation so it captures the types of acts most commonly used to exploit susceptible adults. For example, it includes exploitation by a person who is in a “position of trust and confidence.” It is important to note that the Act specifies that the financial exploitation includes a transfer of assets belonging to a susceptible adult or older person from a personal or joint account. The inclusion of a joint account will make it more difficult for a perpetrator to defend allegations when the perpetrator depletes a joint account that was set up for convenience purposes only.
One of the key elements of the Act is its provision for damages. In addition to being able to recover the full value of the property that was transferred from a susceptible adult, a victim may also be awarded attorneys’ fees and treble damages, subject to the discretion of the court. It is the hope that including the provision to allow for the award of attorneys’ fee would encourage more victims to seek and obtain competent legal counsel. However, if a plaintiff is determined to have brought the action in bad faith or frivolously, the court may order the plaintiff to pay the defendant’s attorney’s fees and court costs. This was included to address the concern that family members could use the Act as a weapon or power play with other family members.
The statute of limitations to file a cause of action is five (5) years after the susceptible adult or their representative discovered or should have discovered the facts that lead to the financial exploitation. In conclusion, the Maryland SAFE Act took great steps to broaden the definition of “financial exploitation” and “susceptible adults” in an attempt to be a deterrent to perpetrators of financial abuse. With the law more clearly defined and a broad definition of “financial exploitation” and “susceptible adults,” litigation against a perpetrator should be easier and will hopefully yield better results for victims. With more knowledge and awareness of the Maryland SAFE Act, hopefully would-be perpetrators of financial abuse will be deterred from acting in the first place.