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The Senior Consumer Protection Act (referred to in this article as the “Act”) added new financial exploitation protections in 2013 for Hoosiers that are 60 years of age or older (referred to in the Act as “senior consumers”). This article describes how the Act combined existing Indiana case law into statutory anti-fraud definitions, standards of conduct, and law enforcement procedures. The article also previews future changes to the law that already protect Illinois senior consumers.
The Act’s first provision solves an old law enforcement jurisdictional problem among three state government entities charged with anti-fraud law enforcement responsibility: (1) the Indiana Attorney General (an elected state official) fights various kinds of consumer fraud; (2) the Indiana Secretary of State (also an elected state official) enforces investment fraud laws; and (3) the Indiana Department of Insurance (a state agency supervised by the Indiana Governor) enforces insurance fraud laws. Before the Act, jurisdictional issues among the three groups could delay anti-fraud law enforcement activity. The Act distinguishes each office’s responsibilities and clarifies when an office should refer a case to one of the other offices to minimize law enforcement delays.
The Act provides that a “person commits financial exploitation of a senior consumer when the person knowingly and by deception or intimidation obtains control over the property of a senior consumer or illegally uses the assets or resources of a senior consumer.”
Under the Act, “deception” is “misrepresentation or omission of any material fact relating to the terms of a contract or agreement entered into with a senior consumer or to the existing or pre-existing condition of any of the property involved in such a contract or agreement; or the use or employment of any misrepresentation, false pretense, or false promise in order to induce, encourage, or solicit a senior consumer to enter into a contract or agreement.”
The Act defines “intimidation” as “the conduct or communication by a person directed toward a senior consumer informing or implying to the senior consumer that the senior consumer will be deprived of food and nutrition, shelter, prescribed medication, or medical care and treatment if the senior consumer does not comply with the person’s demands.”
The Act entitles a financially exploited senior consumer to sue the exploiter to recover possession and control of the senior consumer’s property and to recover damages to the property or the value of property that the deceiver or intimidator has destroyed or has transferred with no ability to recover it.
An exploiter may be liable for payment of double the property damage value and a civil penalty of up to $5,000. The exploiter’s payment obligation can rise to triple the property damage value and a civil penalty of up to $10,000 if the exploiter holds a “position of trust and confidence” because the exploiter has one of these kinds of relationships: (A) is a parent, spouse, adult child, or other relative by blood or marriage of the senior consumer; (B) is a joint tenant or tenant in common with the senior consumer; (C) has a legal or fiduciary relationship with the senior consumer; (D) is a financial planning or investment professional; or (E) is a paid or unpaid caregiver for the senior consumer. Other provisions could expose an exploiter to civil penalty liability ranging from $5,000 per violation to $15,000 per violation.
Indiana House Bill 1123 proposed to add clearer definitions to the Act resembling Illinois financial exploitation protection law definitions, but it bogged down in Indiana’s 2018 legislative session. The bill would have updated the Act with improvements including a new “caregiver” definition and a rebuttable presumption that would void any transfer to a caregiver worth more than $15,000. Part of the bill’s failure in the legislature language in the bill that would have disrupted legitimate estate planning systems involving gifts to senior consumers’ family members. An improved version of the bill may return to the Indiana General Assembly in January 2019.
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation; a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.
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